sage at Providence, a majority of the court held that the company was liable, and that the measure of damages was the amount of the debt with interest from the day of delivery of the message, less the $500 collected. Daly, First Judge, dissented in a carefully considered opinion, on grounds of which the following is a summary statement. Notwithstanding the explanation of the message to the defendant's clerk, the defendant having been under no obligation to assume so great a risk, could not, under the circumstances, with this imperfect information, have intended to do so for so trivial a compensation as the price of the dispatch; even assuming the New York clerk to have had the authority necessary to bind the company to this extent. The company was not advised of the exact circumstances making diligence peculiarly necessary. It was not informed that the firm of which the plaintiff's debtor was a member was insolvent, that his house was unincumbered, nor that it was of value enough to pay the debt, nor could it be presumed to know how much time was necessary to make the attachment, nor its precise legal effect. The loss was too remote and contingent a result of the defendant's delay to impose so heavy a liability, and the plaintiffs themselves, with full knowledge of the facts, “had not been especially diligent." The learned judge observed also that the plaintiff's debt had not been extinguished, and that although the debtors were then insolvent, they might become able and be compelled to pay the debt within the period during which it would continue as an obligation against them. Citing with approbation the case of Landsberger v. The Magnetic Telegraph Co.,(*) he held that the measure of the plaintiffs' damages should be confined to the expense sustained by them in the (*) 32 Barb. 530, supra. transmission of the dispatch. The decision was reversed by the Court of Appeals on technical grounds, without considering the merits. So where the defendant received the message, “you had better come and attend to your claim at once," to be transmitted to the plaintiff, a creditor, and the message was not delivered, and on account of the plaintiff's absence he was able to recover nothing, it was held that the plaintiff was entitled to recover the amount of the claim.(a) § 888. Speculative loss.-The plaintiff must of course prove that the loss for which he seeks compensation would have happened; compensation will not be given for mere conjectural consequences So where the plaintiff, a broker, telegraphed the price at which he could sell his principal's goods, and the message was not delivered, it was held that it was entirely conjectural whether the owner would have sold at that price, and therefore that the plaintiff could not recover his expected commissions.(*) In Hibbard v. Western Union Telegraph Co.(°) a telegram was sent by Hibbard to his agent, directing him to buy goods at a certain price, deliverable in June at the seller's option. The message was not delivered, and the price the next day went up; after that it went down, and continued below the price mentioned in the telegram until after the period fixed for delivery. The agent did not buy the goods. It was held that only nominal damages could be recovered, as the plaintiff could only have made any profit by selling the day after the purchase was made, and it was impossible to say that he would have done this -it depended upon too many contingencies. So where (*) Western U. T. Co. v. Sheffield, 71 Tex. 570. () McColl v. Western U. T. Co., 44 N. Y. Super. Ct. 487. the plaintiff telegraphed to a broker to buy oil on a margin, and the message was not delivered, it was held that the loss of the plaintiff was toc uncertain for compensation, though the price of oil afterwards fluctuated. (*) Where the plaintiff, an undertaker, failed to receive a message, "Meet me at the depot, prepared to arrange for shipment to I. of my mother-in-law's remains," it was held that since he lost only the possibility of making a profit, he could not recover. () In Western U. T. Co. v. Connelly () a message to the plaintiff in these words, "if you want a place, come first train," was delayed; and upon going to the place designated the plaintiff found himself too late. It was held that he might recover compensation for his time and expenses in going to the place, but that loss from failure to secure employment was too conjectural. §889. Uncertain profits not recoverable.-In many cases where a telegram is delayed or not delivered, it is impossible to prove that a bargain has been lost; because it does not appear that had the message been duly transmitted, an actual gain would have ensued. (4) The whole subject has been recently reviewed in its bearing on the contracts of telegraph companies by the Supreme Court of the United States. In Western Union Tel. Co. v. Hall, (*) the message was: "Buy ten thousand if you think it safe. Wire me." The message meant that the person to whom it was addressed should buy ten thousand barrels of petroleum, if he thought it safe. Had it been delivered in time, the purchase would have been (a) Kiley v. Western U. T. Co., 39 Hun 158. (d) Cannon v. W. U. Tel. Co., 100 N. C. 300. made at $1.17 per barrel. On the actual delivery of the dispatch the price had risen to $1.35, and no purchase was made. The court held that the plaintiff could recover only nominal damages. Matthews, J., in delivering the opinion, said: "If the order had been executed on the day when the message should have been delivered, there is nothing in the record to show whether the oil purchased would have been sold on the plaintiff's account on the next day or not, or that it was to be bought for resale. There was no order to sell it, and whether or not the plaintiff would or would not have sold it is altogether uncertain. If he had not done so, but had continued to hold the oil bought, there is also nothing in the record to show whether, up to the time of the bringing of this action, he would or would not have made a profit or suffered a loss, for it is not disclosed in the record whether during that period the price of oil advanced or receded from the price at the date of the intended purchase. The only theory, then, on which the plaintiff could show actual damage or loss is on the supposition that, if he had bought on the 9th of November, he might and would have sold on the 10th. It is the difference between the prices on those two days which was in fact allowed as the measure of his loss. "It is clear that in point of fact the plaintiff has not suffered any actual loss. No transaction was in fact made, and there being neither a purchase nor a sale, there were was no actual difference between the sums paid and the sums received in consequence of it, which could be set down in a profit and loss account. All that can be said to have been lost was the opportunity of buying on November 9th, and of making a profit by selling on the 10th, the sale on that day being purely contingent, without anything in the case to show that it was even probable or intended, much less that it would certainly have taken place." And the learned judge distinguished this from cases in which profits have been allowed as follows: "Such was the case of United States Telegraph Co. v. Wenger.(^) There the message ordered a purchase of stock, which (*) 55 Pa. 262. advanced in price between the time the message should have arrived and the time when it was purchased under another order, and the advance was held to be the measure of damages. There was an actual loss, because there was an actual purchase at a higher price than the party would have been compelled to pay if the message had been promptly delivered, and the circumstances were such as to constitute notice to the company of the necessity for prompt delivery. The rule was similarly applied in Squire v Western Union Telegraph Co.(") There the defendant negligently delayed the delivery of a message accepting an offer to sell certain goods at a certain place for a certain price, whereby the plaintiff lost the bargain, which would have been closed by a prompt delivery of the message. It was held that the plaintiff was entitled to recover, as compensation for his loss, the amount of the difference between the price which he agreed to pay for the merchandise by the message, which if it had been duly delivered would have closed the contract, and the sum which he would have been compelled to pay at the same place in order, by the use of due diligence, to have purchased a like quality and quantity of the same species of merchandise. There the direct consequence and result of the delay in the transmission of the message was the loss of a contract which, if the message had been duly delivered, would by that act have been completed. The loss of the contract was, therefore, the direct result of the defendant's negligence, and the value of that contract consisted in the difference between the contract price and the market price of its subject-matter at the time and place when and where it would have been made. The case of True v. International Telegraph Co.(') cannot be distinguished in its circumstances from the case in Massachusetts, and was governed in its decision by the same rule. The cases of Manville v. Telegraph Co.,() and of Thompson v. Telegraph Co. (") were instances of the application of the same rule to similar circumstances, the difference being merely that in these the damage consisted in the loss of a sale instead of a purchase of property, which was prevented by the negligence of the defendant in the delivery of (*) 98 Mass. 232. (1) 60 Me. 9. (c) 37 Ia. 214, 220. (d) 64 Wis. 531. |