Western Union Telegraph Co. v. Waxelbaum & Co.

56 L.R.A. 741, 39 S.E. 443, 113 Ga. 1017, 1901 Ga. LEXIS 461

• Court: Supreme Court of Georgia
• Decided: July 20, 1901
• Status: Published

Opinion

Lewis, J.

In November, 1898, Waxelbaum & Company, a firm ■doing business in Macon, Ga., telegraphed to Kennard & Company, ■of Chicago, to ascertain the price of eggs. In reply they received the following telegram: “ Telegram received market higher advancing fifteen and half lowest to-day quick telegram.” It seems to be conceded that the original message as delivered for transmission to the Western Union Telegraph Company (the plaintiff in error) by Kennard & Company in Chicago read “sixteen and half,” instead ■of “ fifteen and half,” and that an error was made by some employee ■of the telegraph company in the transmission of the message. On the faith of the telegram as received by them, Waxelbaum & Company ordered a large shipment of eggs from Kennard & Company, .■and when they came' discovered for the first time that the price was sixteen and a half cents per dozen. They took the eggs, however, at the advanced price, and, it seems, disposed of them in Macon. Later they sued the telegraph company in a justice’s court of Bibb county, for breach of contract, for $75, the amount alleged to have been lost by them on account of the negligent failure to-properly transmit, the telegram. The defendant filed an answer denying indebtedness, and setting up that the plaintiffs had failed to comply with a clause in the written contract between the company and the sender of the message, stipulating that the company would not be liable for damages or statutory penalties in any case where the claim was not presented in writing within sixty days-after the message was filed with the company for transmission. Judgment was rendered for the plaintiffs in the justice’s court, and the defendant appealed to a jury in the superior court. After hearing the evidence, the judge of the superior court directed a verdict-for the plaintiffs for the full amount sued for, and the defendant excepted. The original message sent by Kennard & Company, which, by consent, was sent to this court with the bill of exceptions, was written on a blank of the Postal Telegraph-Cable Company, and delivered by the sender to an agent of the Western Union Telegraph Company in Chicago. At the top of the blank, just preceding the written message, are the following words: “ Send the following message, without repeating, subject to the terms and conditions printed on the back hereof, which are hereby agreed to.” Among the conditions referred to is one as follows: “ This company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is. filed with the company for transmission.”

1, 2. It is hardly necessary to argue the very evident legal proposition that where, as in the present case, the sendee of a telegraphic message sues the telegraph company for a breach of a contract entered into between the company and the sender of the message, he is bound by all the reasonable conditions embodied in that contraet. See Stamey v. W. U. Tel. Co., 92 Ga. 613. And itcan make no difference, as was contended by counsel for the defendants in error, that the original message was written on a blank of a different company from the one which received and transmitted the telegram. It is true that the printed contract on the back of the blank was in the name of the Postal Telegraph-Cable Company, and recited that that company was to transmit and deliver the message subject to the terms and conditions therein set out; but Kennard & Company took the message to the Western Union Telegraph Company, and explicitly directed it to “ send the following message, without repeating, subject to the terms and conditions printed on the back hereof, which are hereby agreed to.” The Western Union Telegraph Company accepted and undertook to transmit the message on those terms. The parties, then, adopted the Postal Telegraph-Cable Company’s form of contract, and it necessarily follows that they, together with the sendee, are bound by its reasonable terms and conditions.

3. It is not denied that the plaintiffs below failed to file in writing a claim against the telegraph company within sixty days after the message was filed with it for transmission by Kennard & Company, nor is any attempt made to explain their non-compliance with the clause in the contract making such requirement one of the terms of the acceptance of the message by the company. That this-clause of the contract was reasonable, and therefore obligatory, is not open to question. Hill v. W. U. Tel. Co., 85 Ga. 425, citing Brown v. Ins. Co., 24 Ga. 97, and Underwriters Agency v. Sutherlin, 55 Ga. 266. See also Melson v. Ins. Co., 97 Ga. 722; Massachusetts Assn. v. Robinson, 104 Ga. 272.

4. The record discloses an entire failure on the part of the plaintiffs to prove in what sum, if any, they were damaged. While the document attached to the justice’s court summons sets out the indebtedness of the defendant to the plaintiffs as $75, there is no evidence to sustain this allegation. It does not appear how many of the eggs shipped to them by Kennard & Company were sold by the plaintiffs, or at what prices they were sold. On the contrary, one of the plaintiffs testified to his inability to state at what price the eggs were sold. It is not satisfactorily shown that, if the telegram had been properly transmitted, the plaintiffs would have received any more for the eggs than they did receive. It is to be presumed that they exacted the highest market prices on the eggs which they did sell. Having failed completely to prove any definite amount in which they had suffered through the alleged negligence of the defendant, they were not entitled to have a verdict directed in their favor for the entire sum for which they sued.

Judgment reversed.

All the Justices concurring.