122 S.W. 280

WESTERN UNION TELEGRAPH CO. 
v. 
WILLIAMS.

Court of Civil Appeals of Texas.
October 23, 1909.

        Appeal from Freestone County Court; John Terry, Judge.
        Action by J. H. Williams against the Western Union Telegraph Company. Judgment for plaintiff, and 
defendant appeals. Reversed and remanded.
        N. L. Lindsley, for appellant.
        BOOKHOUT, J.
        Appellee, J. H. Williams, a resident of Freestone county, Tex., on July 23, 1908, brought suit against 
appellant, Western Union Telegraph Company, for the nondelivery of the following telegram: "Rockwall, 
Texas, 7-23-1907. To R. H. Waldrop, Teague, Texas. Rent building if you think best. [Signed] J. H. 
Williams." It was alleged that on the 23d of July, 1907, appellee was the owner, and is still the owner, of 
lot No. 17, in block No. 94, in the town of Teague, Tex., and a certain storehouse situated thereon; that 
on said last-mentioned date appellee had an agent, to wit, R. H. Waldrop, who was then residing in the 
town of Teague, and was in said town at said time, and that he was well known to the citizens of said 
town of Teague; that Connell Bros., a firm then doing business in said town of Teague, was desirous of 
leasing appellee's said storehouse for a period of 12 months beginning on the 1st day of August, 1907, 
and to run for 12 months, or until August 1, 1908, and the said Connell Bros. offered to the appellee the 
sum of $35 per month rental for said building; that appellee was absent from the town of Teague at the 
time, and was in the town of Rockwall, Tex.; that being advised by his said agent of the proposition so 
made by the said Connell Bros. to lease his said building, his said agent not
Page 281
having the authority to lease same without the consent of appellee, he (appellee) on the 23d day of July, 
1907, made and delivered to the appellant's agent at Rockwall the telegram hereinabove set out; that he 
paid to appellant's agent at Rockwall, Tex., the sum of 25 cents, being in full of all charges demanded by 
appellant's agent at said place; that the said telegram was by the negligence of said appellant, its agents 
and servants, never delivered to the said R. H. Waldrop, and by reason of such negligence of appellant in 
failing to promptly transmit and deliver the said message to the said R. H. Waldrop, as it contracted and 
agreed to do, the said Connell Bros. failed to lease the said building, and appellee has thereby suffered 
and lost in actual damages the amount of $420; that, had the appellant delivered the said message to R. 
H. Waldrop, the said Waldrop could and would have closed a rental contract with the said Connell Bros. for 
appellee's said building for one year, beginning on the 1st day of August, 1907, and ending on the 1st day 
of August, 1908, at a monthly rental of $35; that appellee has only been able to rent his said building for 
about two months during said time, and has collected as rents the sum of $45, which said amount he 
credits on the yearly rental he would have received; leaving a balance due of $375, for which amount he 
asks judgment. The defendant answered by general and special exceptions, general denial, and by special 
answer that the plaintiff could and should by the use of ordinary diligence have rented the premises for a 
reasonable monthly rental shortly after July 23, 1907, and that by reason of plaintiff failing to use ordinary 
diligence in this respect, and by reason of the fact that the plaintiff has been guilty of contributory 
negligence, the alleged loss and damage to plaintiff was occasioned, and that the plaintiff for this reason is 
not entitled to recover against the defendant herein. The demurrers were overruled, to which action of the 
court the defendant excepted. Trial was had before the court, which resulted in a judgment in favor of 
appellee and against appellant for $375.
        We are of the opinion that the telegram gave sufficient notice of the object of plaintiff in sending it, 
and that the agents of defendant could reasonably have contemplated that some such damages as that 
sued for would result to plaintiff by its failure to use reasonable diligence for its delivery. The message was 
sufficient to show that Waldrop, the addressee, had been negotiating to rent plaintiff's building, and that 
he was authorized to rent it if in his judgment he thought best, and that damages might result to plaintiff 
if the company failed to deliver the message, and the building was not rented. There was no error in 
overruling appellant's demurrers to the petition.
        We are, however, of the opinion that reversible error is pointed out by the sixth assignment of error, 
reading as follows: "The court erred in rendering judgment in favor of the plaintiff and against the 
defendant herein for the reason that it appears from the uncontradicted evidence in this case that the 
proximate cause of the damages claimed to have resulted to the plaintiff was caused by the failure on the 
part of the plaintiff to make other efforts to rent the storehouse during the time it is claimed he could 
have rented it to Connell Bros." It was the duty of plaintiff, after the contract had been breached and he 
ascertained that Connell Bros. would not rent his building, to use reasonable diligence to rent the same to 
some other responsible party. If it could not be rented for the same amount that Connell Bros. were 
willing to pay, then he should have used reasonable diligence to rent it for the best price he could get 
from other solvent parties, and hold the appellant liable for the difference, and thus reduce as far as 
possible his damages. Telegraph Co. v. Jeanes, 88 Tex. 230, 31 S. W. 186; Kramer v. Wolf Cigar Stores, 
99 Tex. 597, 91 S. W. 775. Appellee testified that he made no attempt after he found his telegram had 
not been delivered to rent his storehouse during the balance of the year.
        For the error pointed out, the judgment is reversed, and the cause remanded.