Pacific Pine Lumber Co. v. Western Union Telegraph Co.

CHIPMAN, C. Action for damages to plaintiff, alleged to have resulted from defendant’s negligence in failing to deliver a message with due promptitude. The complaint was twice amended; the court sustained the demurrer to the last amended complaint without leave to further amend, and gave judgment for defendant, from which plaintiff appeals.

The complaint shows that defendant is engaged in the business of transmitting and delivering messages and cablegrams for hire, and has an office in San Francisco near the plaintiff’s place of business, which was and is well known to defendant by reason [430]of plaintiffs registering with defendant its address, and that defendant agreed to deliver to plaintiff promptly all messages coming over defendant’s wires directed to plaintiff. On August 18, 1894, plaintiff telegraphed one Snethlage, a customer of plaintiff at Shanghai, China, offering him a vessel to convey a cargo of lumber from Puget Sound to Shanghai upon certain terms. On August 19, 1894, Snethlage replied by defendant’s wires accepting plaintiff’s offer; by reason of the gross and inexcusable neglect of defendant, Snethlage’s message was not delivered to plaintiff until September 13, 1894; on the receipt of plaintiff’s message by him Snethlage sold the cargo of lumber at a price netting him one thousand and seventy-one dollars, but that plaintiff, through defendant’s said negligence, was ignorant of Snethlage’s acceptance, and did not despatch the vessel laden with said lumber, by reason of which Snethlage lost his sale and the party to whom he had sold was obliged to purchase in the open market, thus causing a loss to Snethlage of one thousand and seventy-one dollars, which he demands from plaintiff, and for the payment of which he threatens plaintiff with suit; “that owing to the facts set forth plaintiff has no defense against such demand and threatened suit, and will be compelled to pay the same; that plaintiff has requested defendant to assume and discharge said liability to Snethlage, but defendant has refused so to do.”

The ground of demurrer relied upon by defendant goes to the sufficiency of the complaint.

Plaintiff claims that the action is founded upon tort, but it makes no claim for direct injury to it through defendant’s alleged negligence. Its sole claim is, that because Snethlage was damaged and might by suit recover from plaintiff, therefore defendant is liable to plaintiff. It seems to me to be immaterial what plaintiff may call its damages—whether founded upon tort or upon contract; it must recover, if at all, because of plaintiff’s contract liability to Snethlage, for it claims no other damage.