In Rittenhouse v. Telegraph Co., 44 N.Y. 263, it is said by the court: "If the message had been correctly transmitted, the plaintiffs, through their agents, could have purchased the 500 shares of Hudson River Railroad stock for $136.75 per share.Summary of this case from Western Union Tel. Co. v. Hall
Submitted September 29th
Decided December 29th, 1870
Edward Fitch, for the appellants.
E. Sprout, for the respondent.
This case is fairly controlled by the case of Leonard v. The N YA. B. Elec. Magnetic Tel. Co. ( 41 N.Y., 544.) Within the principles laid down in that case, the plaintiffs were clearly entitled to both items of damages claimed by them.
The defendant was liable on the ground of negligence in the transmission of the message; and the negligence is proved by showing that it did not transmit the message in the form in which it was delivered to it. The burden was upon it to show that the mistake happened without its fault. (Shearman R. on Neg., 609, 610.)
If the defendant's agents did not understand the importance or import of the message, they could have inquired of the plaintiff, and hence for all the purposes of this action, it must be treated as fully understanding the message and the consequences which would result from its erroneous transmission.
If the message had been correctly transmitted, the plaintiffs through their agents could have purchased the 500 shares of Hudson River Railroad stock for $136.75 per share. As it was, using the utmost diligence, they were obliged to pay $139.50 per share, making a difference to them of $1,375, and this is the measure of their damage. In order to hold the defendant liable for the damage, it was not incumbent on the plaintiffs to purchase the stock. This purchase, and the proof that they were obliged to pay $139.50 per share, was only important as showing the extent of the damage. The plaintiffs could have maintained their suit against the defendant without having purchased the stock, by showing that immediately, or soon after the delivery of the erroneous message, the stock rose in market so that their order could not have been filled for less than the $139.50 per share.
I know of no rule of law that required the plaintiffs to notify the defendant of the error. When the plaintiffs were notified of the error, the damage had already been done, and they had the right at once to sue the defendant, and the suit could not be defeated either by a tender of the stock or the damages.
The judgment should be affirmed with costs.
GRAY, C., not voting.
Judgment affirmed with costs.