Martin v. Western Union Telegraph Co. (1 Tex. Civ. App. 143, 1892)

KEY, Associate Justice.

The court below sustained a general demurrer to the plaintiff’s petition; and he having declined to amend, judgment was rendered dismissing the suit, from which judgment this writ of error is prosecuted. There are three assignments of error, each raising the only question for this court to consider, which is the sufficiency of the plaintiff’s petition as against a general demurrer.

This petition (omitting certain formal parts) is as follows:

‘ ‘ That plaintiff is a resident citizen of the city of St. Louis, State of Missouri, and that the Western Union Telegraph Company is a private corporation, duly incorporated under and by virtue of the laws of the State of New York, with Jay Gould as president thereof, and said Western Union Telegraph Company has for the last ten years continually held itself out as a telegraph company, and offered as such to receive and transmit messages from any point on its line to any other point thereon, which said points on its line do now and for ten years last past have embraced Belton and Austin in the State of Texas and St. Louis in the State of Missouri; which said business was carried on in consideration of the payment received therefor and the profits arising therefrom, and said defendant during said period of time has held itself as authorized and ready to do said business.

“Plaintiff further alleges, that on, to-wit, the 16th day of February, A. D. 1884, he was associated with John Martin in the mercantile business in the city of St. Louis in the State of Missouri, under the firm name and style of Edward Martin & Co., and that they then and there held a claim, which was just and equitable, against Samuel T. Woodworth, of Belton, Bell County, Texas, amounting to the sum of $1575.80, all of which was due and payable excepting $655.65, which would become due and payable on March 4, 1884. That said Samuel T. Woodworth was then in failing circumstances and was about to be attached by other creditors on the 16th day of February, A. D. 1884, when Montieth & Furman, attorneys at law, of Belton, Texas, and who then and there were acting for said firm of Edward Martin & Co. at their request and as under their employment, prepared a dispatch to James P. Maginn, attorney at law, at St. Louis, Missouri, and who was then and there the attorney of said firm of Edward Martin & Co. in St. Louis, Missouri, and delivered the same at 2 o’clock and 45 minutes p. m. on February 16, A. D. 1884, to the Frontier Telegraph Company, and which was immediately received and transmitted by said Frontier Telegraph Company to the Western Union Telegraph Company, and by it received at 2 o’clock and 45 minutes p. m. on February 16, A. D. 1884, as first written, and sent and transmitted by it to James P. Maginn at St. Louis, State of Missouri. Plaintiff alleges, that said dispatch read as follows, or substantially as follows, and so read at the time when it came into the hands of defendant herein for transmission:

“ Belton, Texas, February 16, 1884.

“ ‘James P. Maginn, St. Louis, Mo.:

“ ‘ Martin & Co. hold note of Sam. Woodworth; will be attached tonight; your bank telegraph Miller Brothers, bankers, to make bond.

“ ‘ 22 collect. 2:45 p. m. Monteith & Furman.’

“ Plaintiff alleges, that by the negligence and carelessness of defendant, its agents and employes, the message was not delivered on that day nor on the succeeding day, but was carelessly and negligently withheld from said James P. Maginn, and he had no notice of the matters referred to-until the 18th day of February, A. D. 1884. Plaintiff alleges, that if said message had been transmitted with proper skill and reasonable rapidity it would have come to the hands of James P. Maginn by 3 o’clock p. m. of the 16th day of February, 1884, and then been by him communicated to Edward Martin & Co., and reply received by said James P. Maginn, and been by him or said Edward Martin & Co., or some good or solvent bank of St. Louis, Mo., answered, either by telegraphing Miller & Brothers or some one else who could have obtained the execution of a good and sufficient bond for attachment which would have been approved by the district clerk of Bell County, Texas, which said answer of said telegram should have been obtained and transmitted by said Western Union Telegraph Company and received by the person to whom the same was sent by 6 o’clock p. m. on the 16th day of February, 1884; and plaintiff alleges, that by the use of reasonable promptness on the part of said Western Union Telegraph Company and by the use of reasonable promptness by James P. Maginn and said Edward Martin & Co., which would have been executed, and by reasonable promptness on the part of said Western Union Telegraph Company in transmitting said replying message from St. Louis, Mo., to Belton, Texas, such answer could and should have been returned by 6 o’clock p. m., February 16, 1884; but plaintiff alleges, that if the same had been received by 8 or even 10 o’clock p. in. of February 16, 1884, the same would have been in time for said Martin & Co. to have saved their indebtedness by obtaining a writ of attachment. And plaintiff alleges, that said Monteith & Furman had prepared a petition, which was°in due form, and an affidavit for attachment in blank, which could, upon getting a telegram, be quickly closed and completed, and Miller Brothers, bankers, of Belton, Texas, had promised upon obtaining an authorizing telegram from some good and solvent bank to go upon said attachment bond as security thereon, and A. M. Monteith stood ready to make affidavit such as is required by law upon which an attachment should issue; and arrangements had been made with the clerk of the District Court of Bell County to stand read)7 to issue writ of attachment and approve bond in legal form and with approved security, which could and would have been readily made if a proper answer had been made to said telegram which had been promptly returned to Belton. And plaintiff alleges, that he stood ready and willing to answer said telegram, and could readily and promptly have provided an attachment bond through a good and reliable bank in St. Louis, Mo., who would have telegrahed Miller Brothers to make bond for Edward Martin, and the said bank would save said Miller Brothers from all loss and damage whatever.

“And plaintiff alleges, that until 11 o’clock p. m. on the 16tli day of February, A. D. 1884, there were sufficient goods, wares, and merchandise of Samuel T. Woodworth subject to attachment to satisfy the debt, interest, and cost of suit, which would have been recovered by judgment from Samuel T. Woodworth at the suit of Edward Martin & Co., and which would have been duly collected by such attachment and judgment of the court; and plaintiff further alleges, that suit would have been instituted, and the goods of Samuel T. Woodworth sufficient to satisfy said indebtedness of Edward Martin & Co. attached, and said indebtedness of Samuel T. Woodworth fully paid and discharged, and that there was good and legal grounds for the issuance of said writ of attachment for such purpose. And plaintiff further alleges, that the nature and purpose of such dispatch, as revealed upon the face thereof, were sufficient to put the said Western Union Telegraph Company upon notice of the importance of such dispatch being promptly and correctly forwarded to said James P. Maginn, in order that the indebtedness therein referred to might be saved or secured, but that defendant, although it had such knowledge by its officers and agents for receiving, transmitting, and delivering, did so carelessly and negligently, so that a mistake was made in the transmitting and delivery of such message, and said message was not delivered until two days after it should have been, to plaintiff’s great damage, he now being the owner of such claim, in the sum of $3000.

“And plaintiff further alleges, that said Edward Martin & Co., in reply to said telegram to James P. Maginn, would also have telegraphed to Monteith & Furman a statement of the amount of their claim against Samuel T. Woodworth, and also a statement as to when the same would become due, for the instruction of said Monteith & Furman as to filling in their allegation in their petition of Edward Martin & Co. v. Samuel T. Woodworth, and affidavit for writ of attachment and bond for attachment to said cause. And plaintiff alleges, that said Sam. T. Woodworth since the 16tli day of February, A. D. 1884, has been insolvent and no sum of money could be made out of him by process of law, and said Samuel T. Woodworth would not willingly pay anything on such indebtedness.

“ Plaintiff further alleges, that said firm of Edward Martin & Co. prior to the institution of this suit was dissolved, and the claim of Edward Martin & Co. against the Western Union Telegraph Company was duly assigned and transferred for a valuable consideration to plaintiff herein and is now his property, and he now sues upon the same in his own name. And plaintiff alleges, that answer to said dispatch ought to have been received at Belton, Texas, by 6 o’clock p. m. of February 16, 1884. Plaintiff further alleges, that he gave due notice as required by law and regulations of the Western Union Telegraph Company of the loss and injury which was occasioned to said Edward Martin & Co., and within the time prescribed by the rules and regulations of said Western Union Telegraph Company, which company refused to pay and satisfy the same in whole or in part; and plaintiff alleges, that plaintiff paid toll for transmission of said message to St. Louis, Missouri, the sum of $1.35, which has not been returned to plaintiff.

“ Wherefore, the premises considered, plaintiff prays that defendant be duly cited to appear and answer this petition, and that on final hearing plaintiff have judgment for said sum of $3000 damages caused to him, and for his toll paid $1.35, and for such other and further relief as plaintiff may in law and in equity be entitled to, and as in duty bound, and will ever pray,” etc.

It is contended by defendant in error that the demurrer to the petition was properly sustained, because:

1. The petition charged a breach of contract with the Frontier Telegraph Company, and seeks to hold defendant in error liable therefor.

2. Unless there was a limitation to the contract by which the company restricted its liability to its line, or some statute controlled this, the Frontier Telegraph Company’s contract will be construed to bind it to deliver the message to the addressee..

3. Plaintiff in error was neither the sender nor addressee of the message.

4. The petition showed too many contingencies to happen after a prompt delivery of the message before plaintiff could have secured his debt.

As to the first of these propositions, the petition alleges that Monteith