W. U. Tel. Co. v. Connell Land Co. , 61 Tex. Civ. App. 168 ( 1910 )

The E. F. Connell Land Company, real estate brokers, sued the Western Union Telegraph Company to recover damages for its negligence in failing to deliver to them a telegram closing up a real estate deal, whereby they allege they lost their commission on the sale. From an adverse judgment, the telegraph company appeals.

Our conclusion that appellant's general demurrer was wrongfully overruled is necessarily decisive of the appeal. We will not set out the entire petition, but the gist of it is that appellees who represented one Hawkins, the owner of three sections of land in Deaf Smith County, were negotiating with C. Lane Company of Danville, Illinois, real estate brokers, who represented one William Hartz, the owner of four hundred and eighty acres of land in Kandiyohi County, Minnesota, for an exchange of said lands. Appellees sent to Lane Company the following message: "Hereford, Texas, 1/18/07. C. Lane Co., Danville, Ill. If you can guarantee loan of $10,000 on 480 acres, deal is made. Answer on or before twentieth, otherwise deal off. E. F. Connell Land Company." Appellant received and promptly transmitted and delivered this message. On January 19, 1907, C. Lane Company prepared and delivered to appellant at Danville, Illinois, for transmission to appellees at Hereford, Texas, the following telegram: "Danville, Illinois, Jan. 19, 1907. E. F. Connell Land Company, Hereford, Texas. Deal closed per your telegram. Party guaranteed ten thousand dollars on four hundred and eighty acres. Letter follows. C. Lane Company." Appellant negligently failed to deliver this message to appellees until after January 20th and by reason of this fact the said Hawkins refused to pay them the agreed commissions of one dollar per acre, aggregating one thousand and twenty dollars, for which amount judgment was sought.

By using the telegraph as a medium of communication, appellees must be held to have indicated to C. Lane Company that their reply might be returned in the same way. And a delivery by C. Lane Company to the telegraph company of the message last quoted, constituted an acceptance of the offer binding on appellees and their principal. (Scottish American Mortgage Company v. Davis, 46 Tex. 504; Western Union Tel. Co. v. Davis, 35 S.W. 189).

The acceptance, then, being complete, appellees had fully earned their commissions whether appellant ever delivered the Danville message or not. And this is true whether the two telegrams constitute an enforceable retract or not. Appellees allege in their petition that at the time of filing the acceptance with appellant, William Hartz was able and willing to buy the Hawkins land at the price and on the terms contemplated by the negotiations between the parties, and that in consequence of appellant's failure to deliver it on or before January 20th, the sale was lost. It thus appears that appellees had earned their commissions by finding a purchaser ready, able and willing to buy their principal's land at the price and on the terms authorized within the time stipulated, and that their commissions were fully earned, regardless of whether the telegrams constituted an enforceable contract. Hamburger Dreyling v. Thomas,103 Tex. 280.

There is no doubt but that appellees, beneficially interested as they were in the contract between C. Lane Company and appellant, could sue the latter for damages for a failure to comply with such contract. Bnt an essential part of such suit is to show that they had been damaged. It is not seen how the failure of appellant to deliver the message on or before January 20th has possibly affected appellees' cause of action, if they have any, against Hawkins. If it has not, they certainly have no cause of action against appellant. We know of no decision carrying the rule of liability thus far, and we do not think it can be justly so extended.

The judgment is reversed, and the cause remanded with instructions to sustain a general demurrer to appellees' petition.

Reversed and remanded.