WESTERN UNION TEL. CO. v. WHEELER

WESTERN UNION TEL. CO. v. WHEELER
1926 OK 288
245 P. 39
114 Okla. 161
Case Number: 15533
Decided: 03/23/1926
Supreme Court of Oklahoma

WESTERN UNION TEL. CO.
v.
WHEELER.

Syllabus

¶0 1. Contracts--Negotiation by Telegraph--When Acceptance Effective. Contracts may be negotiated by telegraph, and when an offer is made by telegraph, an acceptance thereof in the same manner takes effect when the telegram containing the acceptance is deposited for transmission in the telegraph office, and not when it is received by the other party.
2. Telegraphs and Telephones--Failure to Deliver Telegram Accepting Offer to Buy Cotton--Nonliability of Telegraph Company to Seller. Where A. C. & Company telegraphed W. offering a specified price for cotton, and W. accepted such offer by telegraph and shipped the cotton, and drew a draft on A. C. & Company for the price thereof, which draft was paid, and afterward it was discovered that W.'s telegram of acceptance was not delivered, and A. C. & Company sold said cotton for less than the price paid, and W. voluntarily reimbursed A. C. & Company for the difference between the price paid him and the price at which the cotton was sold, W. cannot recover from the telegraph company the amount he repaid A. C. & Company, as it was his voluntary act in making such payment and not the failure to deliver his telegram which was the proximate cause of his injury. Francis R. Stark, Joseph L. Egan, Keaton, Wells & Johnston, and Ramsey, deMeules & Martin, for plaintiff in error.

NICHOLSON, C. J.

¶1 During the months of September and October, 1920, and prior and subsequent thereto, J. Perry Wheeler was the lessee of a round bale cotton gin at Sallisaw, belonging to Anderson, Clayton & Company, and by the terms of a contract between them Anderson, Clayton & Company agreed to purchase all round bale cotton ginned by him, and to quote the price by telegraph from day to day that they were willing to pay for the same. If Wheeler elected to sell at the price quoted, he was to telegraph Anderson, Clayton & Company, before 8 o'clock p. m. of the day of sale, the number of bales sold and ship the cotton to their warehouse at Houston, Tex., and draw a sight draft on them for the purchase price thereof. In accordance with this contract, Anderson, Clayton & Company, on September 13, 1920, sent Wheeler a telegram over the lines of the Western Union Telegraph Company offering him 29 1/2 cents per pound for cotton that day, to which he replied by Western Union telegram, before 8 o'clock p. m. of that day, accepting the offer and advising Anderson, Clayton & Company that he was selling them 50 bales that day, and accordingly shipped said cotton to them at Houston, Tex., and drew a draft on them for the purchase price as quoted in their wire of that day, which draft was paid by them. On October 6, 1920, Anderson, Clayton & Company sent Wheeler a Western Union telegram, offering him 22 1/4 cents per pound for cotton that day, to which plaintiff replied by Western Union telegram, delivered to the telegraph company before 8 o'clock p. m., accepting the offer and advising Anderson, Clayton & Company that he was selling them 100 bales that day, and shipped said cotton to Anderson, Clayton & Company at Houston, Tex., and drew a draft on them for the purchase price thereof, which draft was paid by them.

¶2 Neither of Wheeler's telegrams was delivered to Anderson, Clayton & Company. Thereafter, the market price of cotton declined, and upon the discovery that said telegrams had not been delivered to Anderson, Clayton & Company, a controversy arose between them and Wheeler as to whom the 150 bales of cotton belonged, which controversy ended on October 29, 920, by Wheeler voluntarily agreeing to accept payment for the cotton at the market price that day, which was 20.40 cents per pound.

¶3 Anderson, Clayton & Company drew a draft on Wheeler for the amount of the difference between the prices quoted on September 13th, and October 6th, and the market price on October 29th, which draft was paid by him, whereupon Wheeler brought this action against the Western Union Telegraph Company to recover the sum of $ 1,587, the loss sustained by him, and from a judgment in his favor the company has appealed. It will be observed that all negotiations and communications between Wheeler and Anderson, Clayton & Company pertaining to the purchase and sale of the cotton were conducted by telegraph. Anderson, Clayton & Company proposed to pay Wheeler a definite amount for the cotton, and he accepted their offer unconditionally. By section 5006, Comp. Stat. 1921, it is provided:

"If a proposal prescribes any conditions concerning the communication of its acceptance, the proposer is not bound unless they are conformed to; but in other cases any reasonable and usual mode may be adopted."