31 F. 134 -

'134

BODKIN,

FEDERAL:REPORTER.

Jr., .,.

WESTERN UNION TEL.

Co.

(cwlYUit cowrl, D. Kentucky.

February 14, 1887.)

NEGLIGENCE-PRO:KIMATE AND REMOTE CAUSE-TELEGRAPH COMPANIBS.

, Plaintiff's petition alleged the loss, by a flood. of certain barrel staves, owing to the negligenceof;the defendant in not a telegram, containing information of the arrival of a barge upon which saId staves were to have been shipped, until 80 hours after the receipt of said telegram, although he Within a hundred yards of defendant's office. Held, overruling demurrer to petition, that the plaintiff could recover damages for the loss of the use of the barge in its ordinary and usual uses, but that he could not recover for the loss of the staves which mig/tt have been saved by the use of the barge, as it did not appear that the negligence of the defendant was the natural and proximate cause of such loss.

At Law.

The opinion states the case.

.White &: Reeves and J. M. Bigger, for plaintiff. Henry Burnett, for defendant:
BAlm, J. Plaintiff alleges that he made a contract with F. Norman, who did business in Mound City, Illinois, in which it was agreed he (Norman) would pay plaintiff $50 per thousand for all the staves he would get out and deliver to him at Mound City, Illinois. In this agreement, Norman was to furnish vessels suitable for the purpose of shipping the staves from where they were made to Mound City; that he made, under the agreement, about 40,000 staves, and had them on or near the banks of Mayfield creek, which empties into the Mississippi river at or about 10 or 12 miles below Mound City. Mayfield iaa small creek, which only furnishes water enough to float barges, and other like vessels, when it is high, and hence it must be used for that purpose when the water is high. He alleges that when he was ready with his staves on said creek, he notified Norman, and it was agreed between them that the staves would be shipped whenever the water was at a suitable stage, and that Norman was to send a barge to the mouth of Mayfield creek. and notify plaintiff. and plaintiff,was to take it from there up the creek to the staves, and there load the barge, and deliver the staves to him at Mound City. He says that when the water began to rise, and was rising rapidly, Norman sent a barge to the mouth of Mayfield creek, and secured it at or near the bridge of the Mobile Railroad Company, which is just above the mouth of Mayfield creek, and that said Norman wrote and delivered to the defimdant's 'agent at Mound City a telegram addressed to plaintiff, at Bardwell, which was as follows:
"MOUND CITY, ILLS ·

Get them above as soon as possible. " F. NORMAN." He alleges that defendant undertook to deliver this telegram within a reasonable time; that in fact it was promptly transmitted to Bardwell, but defendant failed to deliver it for 30 hours after its receipt at Bardwell, although plaintiff lived within a hundred yards of defendant's

..D. Bodkin, Jr., Bardwell: Barge at Mobile bridge.

BODKIN V. WESTERN UNION TEL. CO.

135

office, and was actually in defendant's office within that tmle; that this failure was because of negligence and carelessness of defendant's agent; that plaintiff went, immediately upon the receipt of said telegram, to said barge, and found it in good order, and he, without delay, started up the creek with it, ahd did pass up under the Mobile bridge, and ascended up the creek until he got to the bridge of the Illinois Central Railroad Company, which is a short distance above the Mobile bridge. When he got there he found the water had risen so high that he was unable to get said barge above said bridge. He says that the water continued to rise, and did overflow the banks of said creek, and remained up four or five weeks, during all of which time he was unable to get said barge up to the staves. He says that about 20,000 of his said staves were carried off by high water, and were entirely lost, and that a large numper of them were floated out into the bottom and were recovered by him at great expense and labor. He says that, if said telegram had been delivered to him within a reasonable time after it was received by the defendant at Bardwell, he could and would have passed the said barge under the said railroad bridge, and have gone to the staves, and loaded them upon said barge, long before the water got to such a height as to float them off, and he would have saved them all, and would have avoided the loss of them as aforesaid, and the delay, labor, and expense of recovering the others. He alleges that he was damaged in the sum of $2,000 because of the failure of defendant to deliver said telegram within a reasonable time. The defendant has demurred to this petition, and insists that, upon the facts alleged, plaintiff is not entitled to recover any amount of damages. Assuming that plaintiff has a right of action for a breach of this contract, if there be.a breach, and damage, and this seems to be conceded by defendant's counsel, the question arises, has there been a breach, and was plaintiff damaged? Certainly, a delay of 30 hours in the delivery of a dispatch to a person who was within a few hundred yards of the telegraph office was a breach of the contract. It is, however, insisted that the dispatch means, "Get the barge above Mobile bridge as soon as possible," and as the plaintiff did get it above this bridge, notwithstanding the delay, there was no damage caused by this delay. Ifthiswere true, then the damage would be nominal; therefore this demurrer should be overruled because of the nominal recovery. But, as the question of damages has been discussed by counsel, I shall indicate my opinion now. The dispatch is, "Barge at Mobile bridge. Get them above as soon as possible." "Them "may, under the allegation of the petition, refer to the staves. If, however. it :refers to the barge, "sbove," in this dispatch, does not necessarily or naturally refer to that bridge alone, but rather above in the creek. This is clearly the mean": ing, taking the statement of the petition as true, and the dispatch by the light of those facts. . The main question is as to the measure of damages if the dispatch meant, "Get the barge up to the staves as soon as possible." The general rule is that, for the breach of such a contract, the party may ra-

186

FEDERAL REPORTER.

cover the actaal damage sustnined,hut then the damage must be both natuml and proximate. In Leonard <v. New YorkTel.C'Gl.",41 N. Y. 544, EARL, C. J., states the rule thus: "The damages must be such as the partres may fairly be'supposed to have intG ,contracts contemplated when they made the contract. Parties usually contempJa,te t;hat they will pe,rformed, an.d not that they will be. violated. '1:hey ;t;llay actually contemplate any damages which would flow frotl}. any breach, and may frellllentlyhave not sufficient Information to know what such damages would be. * * * A party is liable for an direct damages which both parties to'the contract would have contemplated as flowing from its breach, if, at the time they entered' into it, they bestowed propel' attention 'upon thesubject, ,and had been fully informed of the facts." ALDE:RSON, B.,in Hadley v.BaXendale, 9 Exch. 353, states the rule thus: "Where two parties have made a contract which one of them has broken, tbe damages which the othei' party ought to receive in respect of such breach of contract should, be such as may and reasonably be considered either arising nat.umlly, i. e., accor<ling to usual course of things, from such breach of c«;l!1tract itself, or such as'may reasonably,be supposed to have been in the both parties at the time they made the contract, as the probable result of the breach of it. " . In the at-bar ph.dntiff is to recover, not the value of the ordinary ueeofthe barge for the time which he was delayed, but the loss of tlle staves, which hemiqht have saved from the h.igh water had he been in .w use it. This' would be a special, and, I think, a remote, damage, in the sense of not being the usual and a direct damage Here the barge is not lost by arising from .the non-use of reaSOn of the non-delivery of the dispatch, but a lot of staves are lost, which were intended to be lQaded. upon it, and then the high water is the direct caU8e of the loss. Those have been saved had the barge .in time; but to make the defendant liable for a loss of propgotten erty which \Vas really lost by the high water, because it might have been saved by the use of this barge, seems to me to be going beyond the just rule as to damages in such cases. The breach is the non-delivery' of this dispatch, and the damage should be only the loes of the use of the barge in its ordinary and usual uses; not the loss of other property which waf> not on the barge, and might never have been on it, even if the barge had been there. Scheffer v. Railroad Co., 105 U. S. 249, is a strong case showing how very direct must be the cause of the injury for which damages will be given. There a passenger was so seriously injured by a railroad accident that he became insane, fl,nd within eight ·lnonths committed suicide. They held that the railroad company was not liable in damages for his death, be-cause his own act was the proximate cause. Demurrer overruled for the reasons given.

case

SIMONDS V.

PEARCE;

137

SmONDS

and others v. PEARCE.

(Circuit Oourt. lJ. South Oarolina. April 10, 1887.) 1.
ATTACBMENT-NON-RlllSIDENOE-PROPERTY WITHIN JURISDICTION.

Where, on the trial of the claim of a non-resident intervening claimant of chattels, attached under the law of South Carolina as the property of a nonresident debtor, the jury have. found for the intervllnor, the verdict is conclusive that such debtor has no title in the goods attached; and, in the absence of proOf of other property within the jurisdiction of the court, the attachment suit should be dismissed.
CREDIT.

2.

8.

A .contract for the digging ql' an well which, in express terms. provides that the contractor shall be entitled to be paid for work done thereunder "onlyon the completion ofthewholework," is an entire contract;. and it is not competllnt for the ot,her contracting pax:ty, in a suit by him to recover for the non-performance of the contract, to allow a credit of $500 for work done, for "the 'puryose of sustaining' an attacliment on 'the grounds of non-residence.
SAME-WHAT SUBJECT

teillsolllortgaged cannot be attached fOf a debt of the A gagor'hail. therefore. no property in such chattels 'sufficient, 'in CRse of his non-residence; to support an' on that ground. .

To-,-EQUITY IN CHATTEL MORTGAGE. In South Carolina a mOl'tgagee.of chattels is the legal owner" and the

'

Mqtionto DismiBB for want of jurisdiction. Brawley'&- BarnweU j · for plaintiffs. Mitchell' k Smith and Bryan &- Bryan, for defendant. Before BOND and SIMONTON, JJ. By THE COURT. An attachment was is!\ued out of the state court against certain chattels, as the property of Charles D. Pearce. The ground olthe attachment was that Pearce was a non-reAident, and absent from the state. Thereupon Joseph McGee, pursuing the provisions of the Code of Procedure, intervenedj claiming that the chattels attached were his property. An issue was ordered by the circuit judge to try the issue made upon the denial of this claim. The cause at this stage was removed into this court, McGee being a citizen of New York. Upon the trial of the issue in this court the jury found that the in the chattels was in McGee. The case being now up for trial, the defendant, who has entered a limited appearance for the purpose, moves to dismiss the case for want of jurisdiction. The ground is that he bad no property in the goods attached, and that he had no other property within the jurisdiction of this court. The jury have found that the goods attached are the propHty of McGee. This seems to end that question. But it is maintained that Pearce has right to an account against McGee, because the evidence discloses the fact that he has title in them as mortgagee under a. mortgage executed by Pearce. In South Carolina a Iuortgagee of the chattel is the legal owner. The chattel so mortgaged cannot be levied on or attached for a debt of the mortgagor. Levi v. Legg, 23 S. C. 282. The same evidence offered in this case was used on the trial of the issue made by McGee. It discloses the fact, which is that