{ "id": 5253540, "name": "North Packing and Provision Co. v. Western Union Telegraph Co.", "name_abbreviation": "North Packing & Provision Co. v. Western Union Telegraph Co.", "decision_date": "1897-06-14", "docket_number": "", "first_page": "275", "last_page": "284", "citations": [ { "type": "official", "cite": "70 Ill. App. 275" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "60 Me. 9", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 661042 ], "opinion_index": 0, "case_paths": [ "/me/60/0009-01" ] }, { "cite": "55 Fed. Rep. 738", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 7854527 ], "opinion_index": 0, "case_paths": [ "/f/55/0738-01" ] }, { "cite": "19 Ill. App. 347", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4898261 ], "opinion_index": 0, "case_paths": [ "/ill-app/19/0347-01" ] }, { "cite": "60 Ill. 424", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 } ], "analysis": { "cardinality": 699, "char_count": 16840, "ocr_confidence": 0.517, "pagerank": { "raw": 4.231230291152831e-07, "percentile": 0.9143031118802679 }, "sha256": "bb6bd1c6f002c2576444d9bd69f7daed283c75f6d20aec25a0fd813a2882312a", "simhash": "1:1b09aeb2c118ca5d", "word_count": 2913 }, "last_updated": "2023-07-14T18:32:17.018382+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "North Packing and Provision Co. v. Western Union Telegraph Co." ], "opinions": [ { "text": "Mr. Justice Waterman\ndeliveber the opinion of the Court.\nThe message was to be delivered in Chicago; the contract was thus to be performed there, and is to be construed in accordance with the law of Illinois. Lex loci solutiones. Leake on Contracts, 855.\nThe conditions upon the back of the message, not having been assented to by appellant, formed no part of the contract; the contention of appellee that its liability is limited to the sixty-two cents paid for sending the message, is not the law in this State. Tyler, Ullman & Co. v. W. U. Tel. Co., 60 Ill. 424; W. U. Tel. Co. v. Tyler, 74 Id. 168; W. U. Tel. Co. v. Harris & Comstock, 19 Ill. App. 347.\nA repetition of the message would not have tended to prevent the breach of the contract by appellee.\nA stipulation as to repeating a message does not protect the company from liability for damages which repetition could have no tendency to prevent. Fleischner v. Pacific Postal Tel. Cable Co., 55 Fed. Rep. 738; True v. International Tel. Co., 60 Me. 9.\n\u201c The law imposes upon a person injured by the negligence of another the duty to make reasonable efforts to render that injury as small as possible; and it does not permit him to recover damages for any increase of loss consequent upon a failure to perform that duty.\u201d Gray on Communication by Telegraph, Sec. 100.\nThis rule does not prescribe particular acts, but a line of conduct. The duty is to make reasonable efforts to render the injury as small as possible; what acts such efforts should consist of depends upon the circumstances of the case.\nWhen appellant obtained knowledge of the negligence, the hogs were on their way to Boston; it was too late to sell them otherwise than in transit, and whether this was practicable does not appear.\nWhen the hogs arrived, if ever, in Boston, it is probable that appellant could then have sold them in open market, and adding to their cost the expense of carriage and sale, might have thus ascertained the loss, if any there were. But was he bound to do this ?\nThe hogs were not purchased by appellee for sale, but to be manufactured into pork, etc. It does not appear that appellee had any reason for thinking that by at once throwing these hogs upon the Boston market the loss would have been, lessened.\nWhat the expense of transferring them to the Boston or any other market and there selling, or what the result of so doing would have been, does not appear.\nThe burden of proving that a different line of conduct would have reduced damages, is upon the negligent party, appellee. Sedgwick on Damages, Vol. 1, Sec. 227; Shearman & Redfield on Negligence, Sec. 598.\nIf appellee had complied with its contract to promptly deliver the message, no hogs would have been bought on Tuesday, while, as instructed by the telegram, upon Wednesday the average shipment would have been purchased.\nThe average shipment appears to have been fifteen car loads per day.\nThe telegram was delivered so that but six car loads were purchased on Tuesday.\nThe damage to appellant is the difference in price between the six carloads bought through the negligence of appellee on Tuesday and the cost of such property on Wednesday.\nThat appellant could have done anything other than its agent did, suspend further purchases, to make the loss less, does not appear.\nThe judgment of the Circuit Court is reversed, and the cause remanded.", "type": "majority", "author": "Mr. Justice Waterman" }, { "text": "Mr. Justice Waterman\nupon petition for rehearing.\nCounsel for appellee say that in the statement of facts preceding the opinion of this court, there is an erroneous statement, viz.: \u201cThat it was the habit of Kent to make proportionate daily purchases.\u201d\nThis statement is found in appellant's brief, of which counsel for appellee-in their brief said: * \u201cThe statement of the case in appellant\u2019s brief, although on the whole correct, is wanting in accuracy in one particular and in fullness.\u201d Counsel for appellee then go on to say that appellant\u2019s brief is inaccurate in declaring that Kent immediately sent to appellant notice that its telegram had not been received until after six car loads of hogs had been bought.\nCounsel for appellee failed to call attention to any other inaccuracy.\nQuite naturally, this court assumed that what counsel for each side declared to be a fact, Was.\nTurning to the record, we find that counsel for appellant asked Mr. Kent the following question:\n\u201c Q. When you got an order at the beginning of the week, similar to the one contained in the telegram just introduced in evidence, for instance, to buy ninety cars during the week, how did you ma,ke those purchases, all in one day, or how ? \u201d\nTo which counsel for appellee, Mr. Holt, said: \u201c I object to that as immaterial and as not brought to the -notice of the telegraph company,\"and therefore not binding upon it.\u201d\nThe objection being overruled, Mr. Kent answered: \u201cA. I used my judgment in purchasing, depending upon the supply and market price. Some days would be heavier and some days would be lighter; but the general custom was to use my judgment during the week in making the purchases.\u201d\nWe think that the statement made by counsel for appellant and appellee, adopted by this court, and that made by the witness, are equally inconsequential. The important fact is, that owing to the negligence of appellee, Kent failed to receive an order not to buy, and consequently bought on August 1st at a higher price than he could have purchased on August 2d.\nAppellee insists that Kent received the order not to buy at eight o\u2019clock on Tuesday, and that his, Kent\u2019s, knowledge of the negligence was, at once, appellant\u2019s.\nThere is no testimony showing when the telegram not to buy was delivered to Kent, but it seems to be admitted that this was done at eight o\u2019clock.\nSo too, counsel for appellee admitted that the statement of appellant as to the habit of Kent to make proportionate daily purchases, was correct, which admission they now retract.\nWhatever may be the fact as to the time of the reception by Kent of this telegram, there is no evidence that Kent when he received the message knew that appellee had been negligent in its delivery.\nThe testimony is that the hogs were shipped upon a train leaving the Stock Yards at 12 o\u2019clock. We know that six car loads of hogs must be delivered for shipment a considerable time before the train upon which they are carried actually departs, and that from the time of delivery they are \u201c in transit.\u201d That Kent could, at the time the telegram was received by him, by stopping the carriage, or in any other way, have lessened the loss attendant upon the negligence of appellee, does not appear.\nWe have been referred to no authority holding, as contended by appellee, that the reception by Kent, a mere agent to purchase,, of the delayed telegram, was notice to appellant of the negligence of appellee; nor does it appear that if it were, appellant could have done anything to lessen the loss.\nIt is quite true that if appellant could, when it learned of the purchase, have at once sold the hogs in the Chicago market, the difference between the purchase and the net price it could then have obtained, is the measure of damages, but there is no evidence that the hogs were at that time in a place where they could have then been sold in the Chicago or any other market.\nThe petition for rehearing is denied.", "type": "rehearing", "author": "Mr. Justice Waterman" } ], "attorneys": [ "Albert H. Veeder and Mason B. Loomis, attorneys for appellant.", "Williams, Holt & Wheeler, attorneys for appellee." ], "corrections": "", "head_matter": "North Packing and Provision Co. v. Western Union Telegraph Co.\n1. Telegraph Companies\u2014Place of Performance of Contract With.\u2014 Where a telegraph message, sent from a place outside of the State is to be delivered in this State, the contract between the sender and the telegraph company is to be performed here, and will be construed in accordance with the laws of this State.\n2. Same\u2014Contracts on Back of Blank.\u2014The conditions on the back of a telegraph blank, when not assented t\u00f3, form no part of the contract between the sender and the telegraph company.\n3. Same\u2014Contract Exempting Company from Liability Void.\u2014A condition printed on a telegraph blank, by which the sender of a message exonerates the company from liability, beyond the amount paid, for an incorrect transmission of the message, is against public policy and void.\n4. Same\u2014Effect of Stipulation Requiring Repetition of Message.\u2014A stipulation in a telegraph blank exempting the company from liability for damages unless the telegram is repeated and an additional charge paid, does not protect the company from liability for damages which such repetition could have no tendency to prevent.\n5. Negligence\u2014Duty of Person Injured by.\u2014The law imposes upon a person injured by the negligence of another the duty of making reasonable efforts to render that injury as small as possible; and it does not permit him to recover damages for any increase of loss consequent upon a failure to perform that duty. This rule does not prescribe particular acts, however, but only a line of conduct. The duty is to make reasonable efforts to render the injury as small as possible; what acts such efforts should consist of, depends upon the circumstances of the particular case.\n6. Burden of Proof\u2014That a Different Dine of Conduct Would Have Reduced Damages.\u2014A defendant alleging that a different line of conduct upon the part of a plaintiff suing for damages would have reduced the damages, has the burden of proving that proposition.\nAssumpsit, for failure to deliver a telegram. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding.\nHeard in this court at the March term, 1897.\nReversed and remanded.\nOpinion filed May 24, 1897.\nRehearing denied.\nOpinion filed June 14, 1897.\nStatement of the Case.\nAppellant (plaintiff below) was and had been for years prior to August 1,1893, engaged in the business of slaughtering, packing and selling hogs, and the product thereof, in or near Boston. Appellant bought the live hogs so used in its business, at the Union Stock Yards at Chicago, at which latter point it had a purchasing agent named L. B. Kent, whose sole and only business was to purchase, pay for and ship the hogs from the Union Stock Yards to the appellant at Boston.. The customary method of doing business was for appellant to send a telegram to Kent at the beginning of each week, or at the end of the preceding week, stating about the total number of cars of hogs he should purchase and ship during that week, and thereupon Kent would make proportionate daily purchases and shipments to appellant, subject at all times to any different or countermanding order from appellant. In accordance with its usual custom, appellant sent to Kent a telegram on Saturday night, July 29, 1893, instructing him to ship ninety cars of hogs during the week following. This telegram was received by Kent on the following Monday morning, and thereupon Kent purchased and shipped, on that day, twenty-one cars of hogs; at 4:15 o\u2019clock in the afternoon of that day (Monday, July 31), appellant delivered to appellee, at its office in Boston, a telegram- addressed to its said purchasing agent, at said Union Stock Yards, which read as follows:\n\u201c July 31, \u201993.\nL. B. Kent, Union Stock Yards, Chicago, Ill.:\nBuy nothing Tuesday; average shipment answer for Wednesday unless low day; week\u2019s order unchanged.\nUokth Packing & Provision Co.\u201d\nAt the time of delivering said telegram, appellant paid to appellee the compensation demanded and required by appellee, to wit, the sum of sixty-two cents, for the transmission and delivery of the same, it being a day message.\nThis telegram was received at the branch office of appellee, at Union Stock Yards, on the same day it was sent, at 4:32 p. m., after Kent had gone home.\nOn Tuesday morning, about six o\u2019clock, Kent called at appellee\u2019s said branch office and inquired if any message had been received for him, but this telegram was overlooked, and Kent was informed nothing had been received. Kent immediately went to the yards and commenced buying hogs, under his general orders for the week, and continued to purchase until about eight o\u2019clock a. m., when the telegram last referred to was delivered to him from appellee\u2019s office, whereupon Kent at once quit buying, paid for the purchases already made, and shipped the same to appellant. The purchases so made by him were as follows: 496 hogs, weighing 141,770 pounds (six double deck car loads); average price paid, $5.41\u00a3 per hundred; total amount paid for same, $7,678.58. After receiving said telegram Kent wired to appellant the information that said telegram had not been delivered to him until he had bought six cars of hogs, which message appellant received at Boston at 1:20 August 1st. Afterward, on the same day, O. W. Henderson, manager of appellee\u2019s business at Boston, received from the agent of appellee at Chicago a telegram, which was in the words and figures following, to wit:\n\u201c Boston, Aug. 1, 1893,\nC. W. Henderson, Mgr.:\nTour 178 yesterday, L. B. Kent, Union Stock Yards, Chicago, signed N. P. & P. Co., check 14 paid, rec\u2019d 4:20 p. m., after addressee had gone home; he called about 6 a. m. to-day at our office in the yards, but through an oversight of a new operator, message was overlooked and was informed nothing received; delivery was finally made at 8 a. m. to-day.\u201d\nA copy of which last mentioned telegram was afterward delivered by said Henderson to appellant at its office in Boston.\nOn or about August 5,1893, appellant presented to appellee the following claim in writing, upon the regular bill head of appellant, to wit:\n\u201cNorth Packing and Provision Co.,\nBoston, August 5, 1893.\nSold to Western Union Tel. Co., City.\nClaim for loss sustained on account of not delivering message to our buyer, L. B. Kent, when called for by him. The message was finally delivered after six cars hogs had been purchased, as per copies of telegrams attached:\nAvg. cost of 6 cars, bot. 8-1-93...........$5.41j-\n\u201c \u201c \u201c hogs, bot. 8-2-93..........4.55\n141,770 lbs. hogs. bot.\nAug. 1, 1893, at 86|........ 1,226.31.\u201d\nAfter receiving said claim and examining the papers relating thereto appellee declined to pay the same, advising appellant \u201c that the responsibility is limited under the conditions of the message blank in cases of this kind to the amount of telegraph charges, sixty-two cents, which will be refunded to you on application.\u201d\nUpon the trial of the case it was proved that the only general market place for live hogs in Chicago was at the Union Stock Yards, where appellant, through its said purchasing agent, L. B. Kent, made its purchases; that the price paid for the said six carloads of hogs, bought by him on August 1, 1893, was the fair cash market value of said hogs then and there.\nThe hogs bought August 1st were shipped by Kent to appellants at Boston, about 12 o\u2019clock, in the usual way.\nThe hogs that Kent purchased and shipped were slaughtered and packed by appellant.\nKent had been acting as buyer at the yards for appellant for six years, and during all that time he never sold a shipment of hogs, and did nothing else except to buy and ship them to appellant at Boston.\nAppellant then offered and attempted to prove that the fair cash market price of hogs in the market at the Union Stock Yards, Chicago, on and after August 2, 1893, was about 86J cents per hundred pounds lower than it was on Tuesday, August 1st, when these six cars of hogs were purchased, by reason of the failure and neglect of appellee in delivering the telegram in question; and that in consequence thereof, appellant sustained a loss and damage of about $1,200.\nFor this purpose the witness, Kent, was asked, among other things, as follows:\n\" Q. What was the market price on the next day, August 2d, at the Union Stock Yards?\n\u00fc if \u00fc if if if\nQ. What could the same hogs (bought August 1st) have been bought for next morning, August 2d ?\nQ. If you made any purchases on the next day, to wit: on August 2d, you will please state what purchases you made, and at what prices ?\nQ. What was the fair, cash market price of hogs in the market at the Union Stock Yards, Chicago, on and after August 2, 1893 ?\n-X- if if if if if\nQ. Was the market price on that day, August 1st, higher or lower than the market price on the following day, August 2d, and subsequently ? \u201d\nEach and all of the foregoing questions were objected to by counsel for appellee as incompetent, irrelevant and immaterial, and the objections sustained by the court, and exceptions by counsel for appellant.\nAfter having proved the facts hereinbefore shown, and after having offered and attempted to prove the facts and others last above mentioned, appellant rested its case, and the court on motion of counsel for appellee found in favor of appellee and rendered judgment against appellant for costs. From which finding and judgment appellant has taken this appeal.\nAlbert H. Veeder and Mason B. Loomis, attorneys for appellant.\nWilliams, Holt & Wheeler, attorneys for appellee." }, "file_name": "0275-01", "first_page_order": 275, "last_page_order": 284 }