BODKIN, Jr., v. WESTERN UNION TEL. Co.

(Circuit Court, D. Kentucky. February 14, 1887.)

NEGLIGENCE-PROXIMATE AND REMOTE CAUSE-TELEGRAPH COMPANIES.

Plaintiff's petition alleged the loss, by a flood, of certain barrel staves, owing to the negligence of the defendant in not delivering a telegram, containing information of the arrival of a barge upon which said staves were to have been shipped, until 30 hours after the receipt of said telegram, although he lived 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 might 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.

BARR, 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 is a 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 defendant's agent at Mound City a telegram addressed to plaintiff, at Bardwell, which was as follows:

"MOUND CITY, ILLS. “D. Bodkin, Jr., Bardwell: Barge at Mobile bridge. 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

office, and was actually in defendant's office within that time; 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, and 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 number 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. If this were 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, "above," in this dispatch, does not necessarily or naturally refer to that bridge alone, but rather above in the creek. This is clearly the meaning, taking the statement of the petition as true, and read 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 re

cover the actual damage sustained, but then the damage must be both natural and proximate.

In Leonard v. New York Tel. Co., 41 N. Y. 544, EARL, C. J., states the rule thus:

"The damages must be such as the parties may fairly be supposed to have contemplated when they made the contract. Parties entering into contracts usually contemplate that they will be performed, and not that they will be violated. They may rarely actually contemplate any damages which would flow from any breach, and may frequently have not sufficient information to know what such damages would be. * * * A party is liable for all 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 proper attention upon the subject, and had been fully informed of the facts." ALDERSON, 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, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it."

In the case at bar plaintiff is seeking to recover, not the value of the ordinary use of the barge for the time which he was delayed, but the loss of the staves, which he might have saved from the high water had he been in condition to 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 arising from the non-use of the barge. Here the barge is not lost by reason of the non-delivery of the dispatch, but a lot of staves are lost, which were intended to be loaded upon it, and then the high water is the direct cause of the loss. Those staves might have been saved had the barge gotten there in time; but to make the defendant liable for a loss of property which was 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 loss of the use of the barge in its ordinary and usual uses; not the loss of other property which was 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, and within eight months committed suicide. They held that the railroad company was not liable in damages for his death, because his own act was the proximate cause.

Demurrer overruled for the reasons given.

SIMONDS and others v. PEARCE.

(Circuit Court, D. South Carolina. April 10, 1887.)

1. ATTACHMENT-NON-RESIDENCE-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 intervenor, 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.

2. SAME-FICTITIOUS CREDIT.

A contract for the digging of an artesian well which, in express terms, provides that the contractor shall be entitled to be paid for work done thereunder "only on the completion of the whole work," is an entire contract; and it is not competent for the other contracting party, 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 purpose of sustaining an attachment on the grounds of non-residence. 3. SAME-WHAT Subject to-EQUITY IN CHATTEL MORTGAGE.

In South Carolina a mortgagee of chattels is the legal owner, and the chattels so mortgaged cannot be attached for a debt of the mortgagor. A mortgagor has, therefore, no property in such chattels sufficient, in case of his non-residence, to support an attachment on that ground.

Motion to Dismiss for want of jurisdiction.

Brawley & Barnwell, for plaintiffs.

Mitchell & Smith and Bryan & Bryan, for defendant.
Before BOND and SIMONTON, JJ.

1

BY THE COURT. An attachment was issued out of the state court against certain chattels, as the property of Charles D. Pearce. The ground of the attachment was that Pearce was a non-resident, and absent from the state. Thereupon Joseph McGee, pursuing the provisions of the Code of Procedure, intervened, 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 property in the chattels I 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 had 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 property of McGee. This seems to end that question. But it is maintained that Pearce has a 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 mortgagee 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 uncontradicted, that

the chattels are now worth $1,500, and that the mortgage debt exceeds $2,000. It must be noted that the chattels are attached; that McGee is not a garnishee; and that no claim of any kind against him by plaintiffs appears on the record. He is absent, and a resident of New York. A claim against him by Pearce, also a non-resident, whether for an account or an thing else, is not properly within this jurisdiction.

The plaintiffs, since this term began, admitted in writing on the record that Pearce is entitled to a credit of $500, which they agree to allow to him upon the damages recoverable by them in this suit. They maintain that this credit, which the marshal says he has attached, will save the jurisdiction. The action is for non-performance of a contract to dig an artesian well. This $500 is a sum the plaintiffs are willing to allow for work done in part performance of the contract. Pearce has made no claim for such an allowance. He could not show himself entitled to it. The contract for non-performance of which this suit was brought is in evidence in this case. It is an entire contract. In express terms it provides that Pearce shall be entitled to be paid for work done thereunder "only on the completion of the whole work." The gist of this action is that the work has not been completed. The admission of the plaintiffs is at variance with their contract, and the case made. It cannot be made and used by them simply for the purpose of creating jurisdiction. No one can be made a party to a cause in invitum, unless he be found within, or has property which can be reached within, the jurisdiction of the court in which the cause is brought. In this case, the chattels attached are not the property of the defendant. The other matters styled matters of account are not properly in this jurisdiction. The attachment will not lie. Plaintiffs may discontinue, or take a nonsuit, if they prefer.

LEHMAN v. McQuown and others.

(Circuit Court, D. Colorado. May 12, 1887.)

1. DAMAGES INJUNCTION BOND-WRONGFUL INTERRUPTION OF POSSESSION. Personal property of a debtor was sold at sheriff's sale, and bought by the debtor's wife for less than its real value. A creditor thereupon obtained the appointment of a receiver to take charge of the property so bought, and an injunction to restrain interference; alleging that the purchase was not an honest one. The bona fides of the transaction was afterwards established, and the receiver settled his accounts, and was discharged, and turned over to the purchaser the residue of the property remaining in his hands; a portion of the same having been sold by him. The said purchaser then claimed damages upon the injunction bond, against said creditor, by reason of the wrongful interruption of her possession of the property. Held, that she was entitled to recover.

2. SAME MISMANAGEMENT OF RECEIVER-DISCHARGE.

After such receiver has settled his accounts, and been discharged, without objection, such purchaser cannot recover, as an item of such damages, any alleged loss by reason of such receiver's mismanagement, for which, if established, the receiver might have been held responsible before his discharge.