Western Union Tel. Co. v. True , 101 Tex. 236 ( 1908 )

J.R. True, representing himself, E.C. True and S.P. Strong, applied to Sam Davidson of Fort Worth Texas, at that city, to purchase some steer cattle from him and was informed by Mr. Davidson that he had already given J.W. Martin and A.H. Burns an option on the cattle which they had a right to exercise at any time on or before the morning of the 31st day of October, 1904. It was agreed between Davidson and True that, in case Martin and Burns should not take the cattle, Davidson would send a telegraphic message to True at Ryan, I.T., informing him of the fact, and give him an opportunity to buy the cattle on terms then agreed upon, which were, in substance, that True should have the privilege of selecting from the herd of steer cattle two thousand head, then three years old and upwards, at the price of $27.75 per head, and that he should have the further privilege of selecting from the remainder of the herd one thousand head of steer cattle, two years old past, at the price of $22.50 per head, and True was to have sixty days in which to make the selection and ship the cattle. True resided at Ryan, I.T., and had a ranch within eight miles of that place. The defendant Telegraph Company had a station at Ryan. On the morning of the 31st day of October, 1904 True went to the telegraph station and informed the operator that he was expecting an important message from Fort Worth that day, at the time inquiring if there was a message there for him. Receiving no message he returned again in the afternoon and at several different times and, being under the necessity of going to his ranch, he went to the office at 6 o'clock P.M. on that day and informed the telegraph agent that he had arranged with Jackson and Bird, merchants of that town, to send the message to him at his ranch at once if it should be received, and directed the agent, in case the message should be received, to deliver it at once to Jackson and Bird, which the agent promised to do. Jackson and Bird agreed to receive and forward the message to True. True then departed for his ranch and did not return until the next day, and, having occasion to be at the telegraph office at about 9 o'clock P.M., was informed by the operator that a message was there for him. The message was marked as having been received at 7:45 P.M. on October 31, 1904, and reads as follows: "Fort Worth, Texas, Oct. 31, 1904. To J.R. True, Ryan, I.T., via Sta. Parties failed arrange deal. If you want cattle come here. (Signed) Sam Davidson." Martin and Burns having failed to exercise their option to purchase the cattle, on the afternoon of October 31, 1904, at 3 o'clock P.M., Sam Davidson delivered the above message to the operator of the Western Union Telegraph Company at the Stockyards at Fort Worth to be transmitted to Ryan, I.T. If the message had been promptly sent it would have been received at Ryan by 4 o'clock P.M. of that day. If the message had been promptly delivered to Jackson and Bird when received at Ryan they would have sent it at once to True at his ranch and True could and would have returned to Ryan in time to have taken a train which would have put him in Fort Worth at about 7 o'clock A.M. November 1, in time to have exercised his option of buying the cattle from Davidson, but when he arrived on the first of November from his ranch it was too late for the train which would have carried him to Fort Worth. He took the first train available, arriving at Fort Worth about 5 o'clock A.M. on November 2, when he found that Davidson had concluded that he did not wish to buy the cattle and had sold them to Martin and Burns. The Telegraph Company was negligent in failing to transmit the message promptly from Fort Worth to Ryan, and was negligent in failing to deliver the message to Jackson and Bird according to the directions of True. If True had gotten to Fort Worth on the morning of the 1st of November, he would have purchased the cattle and would have realized a profit on the transaction equal to the amount of the verdict of the jury.

The facts establish beyond controversy the liability of the telegraph company to the defendants in error for such damages as they can establish by proper evidence and the only question which is presented to this court for decision is, did the message, with the attending circumstances, charge the telegraph company with notice of the transaction between Davidson and True? "The telegraph company is chargeable with notice . . . of such purposes as may be reasonably inferred from the language used, in connection with the subject matter of the communication, taking into consideration the usual manner of expressing messages sent by this means." (Western U. Tel. Co. v. Carter, 85 Tex. 580.) The only fact in evidence which tended to furnish an interpretation of the terms of the message is the statement made by True to the operator at Ryan that he was expecting an important message that day. It is the duty of the telegraph company to transmit and deliver promptly every message that is delivered to it, and the statement made in this case by True that the message he expected was "important" gave no aid in arriving at the meaning of the telegram. The fact that the wire was used was enough to convey that information and it was the defendant's duty without instruction to send the message with all reasonable dispatch. (Houston, E. W. Ry. Tel. Co. v. Davidson Hardeman, 15 Texas Civ. App. 334[15 Tex. Civ. App. 334].

In seeking the meaning of the message to the telegraph company we must view it from the standpoint of the agents who handled it. They were not in possession of the facts which served to explain the matter to those who were familiar with the antecedent transactions. True understood from this message that Davidson was extending to him the privilege under a previous agreement to buy the cattle on terms agreed upon, but the agent who received and he who transmitted the message not having the benefit of the facts could only pass upon the language in which it was expressed. Thus looking at the message it reasonably appeared to the operators from its terms that Davidson had theretofore had on hand with other parties a deal for the cattle which the parties had failed to consummate and that True knew of this transaction between Davidson and the unnamed parties. It is reasonably apparent that the purpose of the message was to inform True of the failure of the parties, not named to carry out some transaction and to offer to True the opportunity to buy the cattle if he desired to do so. But there is nothing in the language from which either operator, or any other person reading it from his standpoint, could learn that there had theretofore been an agreement entered into between Davidson and True whereby the latter should be entitled, upon the failure of other parties, to purchase the cattle. The language, "if you want the cattle come here," would justify the conclusion that the matter was then open for True to buy and that Davidson was giving him this information in order to induce him to make the purchase. Beyond this the telegraph operators could not have understood that there was a pending transaction or any specific terms or agreement about which these parties were conducting this correspondence by wire. It follows that the message being so indefinite as not to give any information to the telegraph company of the right to be protected by a prompt delivery of it or of the damages which might ensue from a failure to deliver promptly, no recovery of damages accruing from the loss of the option to buy the cattle can be had by the defendants in error for the negligence of the company's agents in failing to send and deliver the message with reasonable promptness.

The facts stated do not sustain the judgment of the court as rendered, nor do they disclose any facts upon which the defendants in error would be entitled to recover more than nominal damages. It is therefore ordered that the judgments of the District Court and of the Court of Civil Appeals be reversed and that the cause be remanded.

Reversed and remanded.