Western Union Telegraph Co. v. Lewis

203 F. 832, 49 L.R.A.N.S. 927, 1913 U.S. App. LEXIS 1206

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 4, 1913
• Docket: No. 2,312
• Status: Published

Opinions

FOSTER, District Judge.

In this case the facts appear to be as follows:

Sam Davidson was the owner of a tract of land in Hall and Donnelly counties, Tex., known as the “Diamond Tail Pasture Lands,” consisting of about 16,000 acres. About the beginning of 1906 Davidson authorized J. F. Flail, of Amarillo, Tex., and other brokers, to sell the land at $3.25 an acre. Hall was unable to sell at this price. About the 1st of July, 1906, Davidson raised the price to $3.50 per acre, and Hall continued to try to sell it, but got no definite offers except from I,ewis, defendant in error. On the 13th of November, 1906, Flail sent the following telegram from Amarillo to Davidson, at Ft. Worth, Tex., by the Western Union Telegraph Company:

“Lewis offers three dollars per aere, and also over this assumes debt to State, of about sixty-five hundred, tor Diamond Tail Pasture. Will pay ten or fifteen thousand cash. Reply.”

This offer amounted to about $3.25 per acre. The message was never delivered to Davidson, and he shortly thereafter sold the property for $3.50 per acre. Lewis brought suit against the Western Union Telegraph Company in the district court of Potter county, Tex., to recover $32,000 as damages for the nondelivery of the telegram. The case was removed to the United States Circuit Court for the Northern District of Texas, and went to trial. At the close of the evidence the Telegraph Company moved the court to direct a verdict in its favor. The motion was overruled, and the case went to the jury, and resulted in a verdict against the defendant in the sum of $1,129. The overruling of the motion to direct is one of the errors assigned.

The defendant in error in his petition sets up that he was engaged generally in buying and selling range property for profit, including lands and cattle. His ad damnum is as follows:

“That said ranch and lands aggregated 16,000 acres, and would have cost plaintiff $54,500, while they would have been worth to him, and were and are of a reasonable market value, and of value for use to plaintiff in his business, of IS.S6.500J,' or $2 per acre more than said land would have cost him, making a difference of $32,000, in which said sum, with interest from said date, plaintiff has been damaged as the direct result of defendant’s negligence and failure to perform its said contract and obligations.”

Lewis, as a witness in his own behalf, testified as follows:

“My name is W. J. Lewis, and I live at Clarendon. I am in the cattle business, speculating a little, buying and selling land and cattle. I only buy and sell for myself. I have been engaged in this kind of business 15 or 20 years. * * * I was not able to purchase IMs property upon the offer I authorized Mr. Hall to make, but, if Mr. Davidson had accepted the offer, I was in a position to carry it out. * * * At the time I made this offer 1 was familiar with land values in that section of the country, being in that business and biiying everything I thought was cheap. I think that the reasonable and fail- Cash market value of the laud I made the offer for on the loth of September, 1906, was $4.50 an acre. * * * As to the value of the land, the figures I have stated are what I thought 1 would have been able to get out of it. I was figuring on the matter as a speculative proposition — that was my object in buying the land. 1 thought it was worth $4.50 an acre, and that is what I figured I would get as a speculative proposition. I didn’t expect to buy on the 13th and sell on the 14th. A proposition like that would probably take a month to work out. I might have sold on the basis'Of some easli, some notes, and some trade. When figuring on a piece of property like this, I don’t always expect to pay all cash or sell for all cask, but in this particular case I didn’t think about the terms I would- sell on.”

It appears from the above that Lewis intended to buy the land purely as a speculation, and it is not shown he had any particular purchaser in view. On the contrary, he expected to hold the land some time before finding a purchaser at a satisfactory price. He did not buy any other land in place of it, and nowhere in the pleadings or proof is there anything indicating that Lewis had any use for the property except to sell it, or that he was damaged in any other way by his failure, to buy it than by the loss of the anticipated profits. He did not even pay for the telegram which was sent by Hall.

[1] Conceding, for the sake of argument, that Hall was acting as Lewis’ agent, that the telegram charged the company with notice of that fact, and that Davidson would have accepted Lewis’ offer, none of which is free from doubt, on the undisputed evidence there was nothing for the jury, as the anticipated profits were too uncertain and remote to form the basis of a claim for damages. Howard v. Stillwell & Bierce Manufacturing Co., 139 U. S. 199, 11 Sup. Ct. 500, 35 L. Ed. 147; Western Union Telegraph Co. v. Hall, 124 U. S. 444, 8 Sup. Ct. 577, 31 L. Ed. 479.

Entertaining these views, it is unnecessary to consider the other questions presented by the record.

The judgment is reversed, and the case remanded for a new trial.