#### CLARK MANUFACTURING COMPANY v. WESTERN UNION TELEGRAPH COMPANY.

(Filed 9 March, 1910.)

1. Telegraphs — Messages—Actual Damages — Contemplation of Parties. /

Any damages recoverable beyond the toll paid, for the negligent delay of a telegraph company in the transmission and delivery of a message, must be limited to those fairly considered as necessarily arising, according to the usual course of things, from the breach of the very contract sued upon, or which both parties must have reasonably understood and contemplated, when making the contract, as likely to result from the breach.

2. Same — Nominal Damages.

The plaintiff sued the telegraph company for damages alleged to have resulted from the negligent delay in transmitting or delivering a message sent to it by its commission merchant, to the effect asking it, the sendee, if it would accept a certain price for a certain quantity of cloth on hand, which it manufactured, if an offer could be obtained, to which plaintiff replied, authorizing sale at the price named, provided no better price was obtainable. The damages claimed was the difference between the price suggested and the market price at which plaintiff subsequently sold. There was no notice given to the company, apart from that which the messages disclosed, as to the character of damages likely to result from its negligence: Held, only nominal damages, or the toll paid for the message, was recoverable, there being nothing upon the faces of the messages to indicate that the reply would make a binding contract of sale, or that the telegram was anything more than a mere trade inquiry.

*1583. Same — Payment of Toll — No Record Evidence — Procedure.

And there being no evidence that plaintiff: paid the toll for the message sued on, the case is remanded to the Superior Court to the end that, if the toll was paid, the plaintiff may recover it.

Appeal from W. B. Allen, J., at Fall Term, 1909, of Wake.

Civil action to recover damages for failure to deliver a telegram within a reasonable time, heard by his Honor upon exceptions to the report of a referee to whom the cause had been referred by consent. The judge overruled all the defendant’s exceptions to the report and fully confirmed the same. To this judgment the defendant duly excepted and appealed.

Among other exceptions overruled by the Superior Court is defendant’s exception to the 22d finding of the referee, which is as follows:

“22. That the plaintiff, the Clark Manufacturing Company, because of the aforesaid delays in transmitting and delivering the telegrams and messages referred to and set out in findings 5 and 13 above, which delays were caused by the negligence and want of ordinary care on the part of the defendant, has been damaged in the sum of five hundred and fifty-six dollars and ten cents ($556.10), made up as follows:

Difference between 8% cents (being amount of tona, fide offer) and 8^4 cents (price at which sold) per yard for 166,000 yards of drill cloth.'. $415.00

Loss of interest from 21 December, 1905, to 20 February, 1906, on $14,110, the amount for which said cloth would have sold at 8% cents per yard. 141.00

Total . $556.10

The facts are fully stated in the opinion of the Court.

C. B. Denson and Walter Clark, Jr., for plaintiff.

Womaclt & Pace and Philip II. Bushee for defendant.

Beown, J.

From the findings of the referee it appears that about 10 o’clock A. M., 21 December, 1905, the Textile Commission Company filed in the office of the defendant, at New York, for transmission to the Clark Manufacturing Company, at Jonesboro, N. C., the following telegram:

> New Yobk, December 21, 1905.

> ClABK MANUFACTURING COMPANY,

> Jonesboro, N. O.

> Will you accept eight one-half all two-fifty drills on hand if we can get offer? Answer.

> Textile Commission Company.

*159Tbis telegram was delivered to tbe Clark Manufacturing Company at Jonesboro, between 2:40 and 3 o’clock P. M. on tbe same date. Prior to 3 :15 P. M. .tbe Clark Manufacturing Company filed witb tbe defendant at Jonesboro tbe following message, addressed to tbe Textile Commission Company at New York:

> JoNesboro, N. C.,.December 21, 1905.

> Textile CommissioN Compaky,

> 53 Worth Street, New York City.

> Will accept eight balf for two-fifty drills if you can do no better. Would like to close Osanburgs'order before cotton advances.

> David Clark:.

Tbis telegram was delivered to tbe Textile Commission Company after 5 o’clock P. M. on same day.

Upon a consideration of tbis case, and after most careful examination of tbe full briefs filed by counsel for botb parties, we are unanimously of tbe opinion tbat tbe learned judge of tbe Superior Court erred in overruling tbe defendant’s exception to tbe finding of tbe referee as to tbe quantum of damage.

Owing to tbe indefinite and uncertain character of tbe telegraphic correspondence, we think, upon tbe • great weight of authority, both text-writers and judicial precedents, tbat tbe plaintiff is entitled to recover only nominal damage, to wit, tbe charges paid for the telegram from tbe Textile Commission Company, in case it has paid them or incurred them.

It seems to ’be an almost univqrsal principle of tbe law of damage, imbedded in tbe jurisprudence of tbis country and Great Britain, and adopted in tbis State by unanimous decisions in many cases, tbat under any contract to transmit a message by telegraph, as under any other contract, tbe damages for a breach must be limited to those which may be fairly considered as ■ necessarily arising, according to tbe usual course of things, from tbe breach of the very contract sued upon, or which both parties must reasonably have ¶ understood and contemplated, when making tbe contract, as likely to result from its breach. Tbis principle is recognized in all the cases cited by tbe learned counsel for plaintiff and in hundreds of others in addition.

It is founded upon tbe rule laid down in tbe familiar English case of Hadley v. Baxendale, 9 Exch., 345, which has been quoted and approved by tbe Supreme Court of tbe United States and practically all tbe other judicial tribunals of tbis country. Tel. Co. v. Hall, 124 U. S., 444; Primrose v. Telegraph Co., 154 U. S., 883; Wood Mayne on Damages, sec. 13, and notes; Joyce on Damages, sec. 1403; Sutherland on Dam*160ages, sec. SO. Tbe rule as stated by Joyce is that if tbe sender of a message does not notify tbe company of its importance or of special damages wbicb may result from a breach of tbe contract, and tbe message does not, from its language, convey to tbe company any suet knowledge, only such damages may be recovered as could bave been reasonably anticipated from tbe language of tbe message, and there can be no recovery for damages arising out of such special circumstances. Section 1403 and notes citing a great array of decided cases.

Tbe rule is applied by this Court in actions against telegraph companies for negligence in transmitting and delivering messages. Williams v. Telegraph Co., 136 N. C., 84, and cases cited. In bis well-considered opinion in this case Mr. Justice Walleer quotes at length from the Supreme Court of Massachusetts an extract showing tbe importance and inherent justice of this rule.

. Applying this established principle to tbe facts of this case, it is quite clear that tbe plaintiff is not entitled to recover tbe special damages claimed.

It is not contended that tbe defendant bad any notice of any special circumstances, or any other knowledge of tbe nature of the transaction, or of tbe consequences of delay, other than such as is afforded by tbe telegram itself.

It is apparent that tbe message gives no indication of a contract to sell or that one would be entered into immediately upon receipt of tbe answer, and tbe answer itself is not a definite acceptance of a proposition to sell, but makes it tbe duty of plaintiff’s factor to endeavor to get a better price.

Tbe telegram to plaintiff does not state that an offer bad been made, but plainly implies that up to that date no such offer bad been received. This is tbe construction that tbe sender intended should be placed upon it by tbe plaintiff; and tbe reply shows that it was tbe construction actually placed upon it by tbe sendee. In tbe examination of Meyer, general manager of the Textile- Company, who sent tbe telegram, and who is examined as a witness for plaintiff, be is 'asked why be sent a misleading telegram, concealing tbe fact that be bad such offer. Tbe answer of tbe witness has at least one merit, and that is-candor. He says: “For tbe reason that we knew that tbe offer wbicb we bad in band was full market price for tbe goods and the best price that it was possible to get, and we worded our telegram as we did for tbe reason that we did not want tbe Clark Manufacturing Company to know positively that we bad a definite offer, for, as is frequently tbe case with a mill, when they find you have a good offer, they expect you to get a little more, and *161in tbe meantime they sit down between two chairs and we miss the sale.” And again in same deposition: “Q.: Do you mean that we shall understand you to say that the telegram to your principal was distinctly meant to conceal from the person the fact that you had an offer for the goods?”

> “A.: In the sense that we did not want them to know that we had a firm bid price, yes, acting in the best interest of the mill.”

There is some attempt to show that it is the custom of commission houses to send such misleading telegrams to their principals, even when they have a definite bid, to prevent the factories from asking a higher price. But even if such evidence be considered pertinent, there is nothing to show that the defendant’s agents had knowledge of such an extraordinary custom obtaining in the cotton-goods trade. We can see no reason why, if this telegram was intended to mislead, and actually did deceive the plaintiff, engaged in the business and supposed to be conversant with its peculiar usages, it should not also mislead this defendant as to the real purpose for which it was sent.

Giving it the only construction the words are susceptible of, the same obstacle confronts this plaintiff as in Beatty v. Telegraph Co., 44 S. E. Rep., 309, where the Supreme Court of West Virginia says: “But the trouble facing the plaintiff in this case is that there was no final contract between the parties, but only a proposal for a contract, and there can be no contract without both a proposal and its acceptance. The failure of the telegraph company did not cause the breach of a consummate contract; it only prevented one that might or might not have been made.” See, also, Hosiery Co. v. Telegraph Co., 51 S. E. Rep., 290, and Wilson v. Telegraph Co., 52 S. E. Rep., 153.

The offer must be distinct as such and not merely an invitation to enter into negotiations upon a certain basis. Wire Works v. Sorrell, 142 Mass., 442; Beaupe v. Telegraph Co., 21 Minn., 155, and 24 Am. and Eng., and cases cited. See, also, Manufacturing Co. v. Filder, 115 Ga., 408; Moulton n. Kershaw, 59 Wis., 316; Clay v. Telegraph Co., 78 Me., 97; Telegraph Co. v. Connelly, 2 Tex. Civil Appeals; Thompson Electricity; Clay v. Telegraph Co., 81 Ga., 285; Walser v. Telegraph Co., 114 N. C., 440; Telegraph Co. v. Way, 83 Ala., 559.

The text-writers declare that the offer must be one which is intended of itself to create legal relations upon acceptance. 1 Paige on Contracts, see. 26; Clark on Contracts, sec. 29.

These principles were applied by the Supreme Court of the United States in a case like this, and a recovery for more than nominal damages denied. They were applied by this Court in *162a unanimous opinion to tbe case of Tanning Co. v. Telegraph Co., 143 N. C., 37 6, in many respects very similar to this,, and a recovery of substantial damages denied.

The telegram in this case, as in that, is merely what the books call a “trade inquiry.” The recent case of Williamson v. Telegraph Co., 151 N. C., 65, S. E., 976, has no application to the facts of this case. The negligence there consisted in a mistake in transmission. In his opinion the learned Chief Justice asks the pertinent question: “Was the message such as would put the defendant on notice of damages resulting as the consequence of an erroneous transmission?” The Court thought it did. The telegram related to an actual sale of goods and the error consisted in transmitting the word nine instead of ninety. The distinction between the cases is so marked and obvious that we will not discuss it.

The telegram in the case at bar not only failed to disclose on its face anything in the nature of a sale or contract, but was intended to create on the mind of the sendee the contrary impression.

It was calculated to mislead the company as well as the sendee as to the true nature of the transaction the sender had in hand. When the sender elects to studiously conceal the true nature of the transaction by misleading words, he thereby puts the telegraph company in ignorance as to the character of the duty imposed upon it or the magnitude of its liability, and the same principle which prevents a recovery in case of cipher messages will prevent it in cases of this character.

“Nothing is more important or just,” says Sommerville, J., in Telegraph Co. v. Way, 83 Ala., 563, “in this view of the subject, than that the law should require the sender at his hazard to disclose the meaning or nature of the message, in order that the company may observe such precautions as may be necessary to guard itself against the risk incident to the duty to be performed.” Hale on Damages, id. 291, and cases cited.

There is no evidence in the record that the plaintiff has paid anything on account of the telegraph charges on the delayed message received from the Textile Company. If so, plaintiff would be entitled to recover such sum. That .may be inquired into in the Superior Court.

The exception of the defendant to the 22d finding of referee is sustained and the cause remanded, to be proceeded with in accordance with this opinion.

Reversed.

The Chief Justice took no part in the decision of this case.