Turner v. Hawkeye Telegraph Company. Porter & Moir, for appellee. BECK, J. Plaintiff is a grain dealer doing business at Steamboat Rock, Harding county, and the defendant is a corporation operating a telegraph line from Albia to Northwood, having an office at plaintiff's place of business. The defendant contracted to furnish plaintiff at Steamboat Rock daily dispatches, showing the prices of grain, both in Chicago and New York, for the consideration of ten dollars per month. Under this contract, on the 17th day of August, 1874, the defendant's agent delivered to plaintiff a dispatch showing the market price of wheat in Chicago to be $1.21 per bushel. This report was incorrect; on that day the price was $1.56. Upon the strength of this information, plaintiff directed his commission merchants at Chicago, by telegraph, to purchase 5,000 bushels of wheat, to fill a contract for the delivery of that quantity during the month of August. Under this order the purchase was made on the 19th, the intervening day being Sunday, at the price of $1.50 per bushel. August 20th the price of wheat dropped to $1.12, and on the following day it was $1.12. The price of the grain under plaintiff's contract to deliver the 5,000, was $1.32 per bushel. Plaintiff claims to recover as his damages, the difference between the value of the grain at $1.50, the price paid by him, and $1.21, the price as reported by defendant, being 284 cents per bushel, which makes the total sum upon 5,000 bushels purchased, $1,425. This sum, together with interest thereon, he claims, is the measure of his damages. The court found the contract declared upon, and facts as above set out, and further that "the defendant's telegraph line was not in good, perfect working order, and the dispatch delivered and furnished to plaintiff was not correctly transmitted on account of the negligence and want of care of defendant and their (its) agents and employees." Judgment was rendered for the sum of $1,425, the difference between the price of wheat as reported, and the price paid by plaintiff for the 5,000 bushels, purchased to fill his contract. I. Defendant's counsel insist that the finding of the court is in conflict with the evidence and the law. They, among other objections to the judgment, insist that there was no proof of the negligence of defendant; that the burden of establishing negligence in sending the dispatch, reporting the price of grain, rested upon plaintiff, and as he offered no sufficient evidence of that fact, he failed to make out a case against defendant. The point may be briefly disposed of. Defendant's line of telegraph did not extend to Chicago, but at Grinnell it connected with another line reaching to that city, from which the market reports were Turner v. Hawkeye Telegraph Company. obtained, and sent by defendant to different points on its line. It is insisted by defendant that plaintiff failed to show that a correct report was furnished, to be sent from Grinnell upon defendant's line. The evidence shows that the market reports were received at Grinnell on the day the incorrect one was delivered to plaintiff. Upon this evidence we must presume that the reports received there and delivered to defendant were correct. The rules of evidence, in the absence of proof showing the report delivered to defendant at Grinnell to be either correct or incorrect, require us to presume it to have been correct. They are based upon the fact that men ordinarily, in the course of business, act correctly and speak truly. Errors and intentional misstatements are exceptions, and not the rule in the affairs of business. Their application in this case is demanded by the fact that the evidence to establish error in the report furnished defendant was within its control and exclusive knowledge. Plaintiff was utterly unable to prove the correctness of the report furnished at Grinnell, while, if it had been incorrect, defendant could have readily established the fact. Still another reason may be assigned in support of our ruling upon this point. The agent of defendant, as he testifies, destroyed all the memoranda and papers in his office at Grinnell, pertaining to the transaction. These, it is presumed, would have shown whether the report was correctly made to defendant. This circumstance, without satisfactory explanation of the cause for this act, raises a presumption against defendant, as it is hardly reasonable to suppose that the papers would have been destroyed, if they had contained evidence reliev ing defendant of the charge of negligence. II. Counsel insist that the evidence is not sufficient to charge defendant with negligence. As we have seen, the presumption of the law is that the report received by defendant for transmission was correct. It must be presumed that ordinarily, by the exercise of proper care, it would have been correctly transmitted. The burden was then thrown upon the defendant to show that the error occurred from causes or conditions that relieved defendant of responsibility As it was delivered to plaintiff in a correct form we are required to presume that the error resulted through negligence. Bartlett v. Western Union Tel. Co., 62 Me. 209; S. C., 16 Am. Rep. 437; Wharton on Negligence, 766, and authorities cited. Sweatland v. Ill. & M. Tel. Co., 27 Iowa, 435; S. C., 1 Am. Rep. 285, does not support the position of defendant. Under the contract sued upon in that case, the defendant's liability was restricted. It was held that, under such restriction, the defendant was liable for want of ordinary care and the burden of proving negligence was upon the plaintiff. Turner v. Hawkeye Telegraph Company. III. Another view of the case, in our opinion, removes all doubt of the liability of defendant under the evidence found in the record. The contract between the parties was not for the sending of messages but that defendant was to furnish plaintiff with daily reports of the grain market at Chicago and New York. These reports were not sent by a correspondent of plaintiff but, as we understand the record, were to be procured and sent by defendant from Grinnell or from some other place on their line. In this view of the case defendant was liable, even though the reports sent were incorrect, for it was charged with the duty of procuring them and liable consequently for any errors which destroyed their character as true reports. In undertaking to furnish reports of the market they bound themselves to furnish true reports, and they would be liable for sending those which would tend to deceive plaintiff, and thus subject him to loss. IV. Defendant's counsel urge that the finding of the court to the effect that "defendant's telegraph line was not in good, perfect working order," is not supported by the evidence. It may be conceded that this objection is well taken, yet it does not require the reversal of the case. The court correctly found, as we have seen, that the error in the report resulted from defendant's negligence. This would render it liable and sufficiently support the judgment. It was not necessary in order to entitle plaintiff to recover that in addition to defendant's negligence it should be shown that its line was not in good order. If we should, therefore, conclude that this particular finding is in conflict with the evidence, we would not be required to reverse the judgment. V. The objection of defendant, which we consider in the last place, is directed at the damages allowed by the court. It is claimed that, as plaintiff was engaged in buying grain at Steamboat Rock and gave defendant no notice that the market report furnished was intended to guide him in purchases of wheat in Chicago, he cannot recover as damages the loss which he sustained by reason of the error in the dispatch, in the purchase of the 5,000 bushels of wheat. Such damages, it is claimed, did not enter into the contemplation of the parties when the contract was made. There is nothing in the evidence upon the subject further than that plaintiff was a purchaser of grain at Steamboat Rock, and that he sold in Chicago. It also appears that he made contracts for the delivery of grain at that city at a future day. All of his transactions were based upon his information of the Chicago market, and that he might have speedy and accurate information, he entered into the contract sued upon. It is within the ordinary course of business for a dealer in grain to make State v. Book. contracts for future delivery, and to depend upon future purchases to enable him to fulfill his obligation. These purchases are made whenever the grain can be had at a price offering an inducement to the dealer, and such purchases are often made by business men of this State in Chicago to fill their contracts for delivery in that city. These facts, it will be presumed, entered into the contemplation of the parties to the contract in suit. The defendant, then, cannot claim that it is released from liability for the loss sustained by plaintiff on the ground of a want of notice of the transaction in which defendant used the information furnished by the report of the market. It appears to us that as defendant contracted to furnish reports of the Chicago grain market to plaintiff, it was sufficiently notified that plaintiff's transactions were to be in that market and there is no evidence raising a presumption that defendant was authorized to regard him as a seller only of grain there. These considerations dispose of the argument of defendant on this branch of the case. VI. The damages awarded plaintiff appear to us to be no greater sum than will justly compensate him for the loss sustained. He was led to believe, by the dispatch delivered by defendant, the market value of wheat was $1.21 per bushel. Upon that information he ordered the purchase of wheat, and was compelled to pay $1.50. He could have purchased within the time prescribed by his contract for the delivery of the wheat for even less than the price named in the false report upon which he acted. It was the cause of his paying 28 cents more per bushel than he consented to pay, and 38 cents more than the price at which he could have purchased the grain within five days after its receipt. Certainly plaintiff suffered loss to the amount of the judgment through the fault of defendant. The District Court awarded him no more than compensation. The foregoing discussion disposes of all questions raised in this case. The judgment is Affirmed. STATE V. Book. (41 Iowa, 550.) Criminal law — gambling — billiard-room. The keeper of a biliiard-room where parties with his knowledge play billiards with the understanding that the loser shall pay for the use of the table, is guilty of a violation of a statute against keeping a house resorted to for the purposes of gambling. VOL. XX.-77 INDIC State v. Book. [NDICTMENT charging that the defendant, at a time and place stated, "kept, used, managed, and controlled a building, erection and place, resorted to by divers persons for the purpose of gambling at games of pin pool, cards, dice, and other games, for money, beer, cigars and other things of value, and the said Peter Book, within the building erection and place aforesaid, then and there suffered and permitted persons to play at games of pin pool, cards, dice, and other games, for cigars, and other things of value, contrary to the statute," etc. money, beer, The defendant pleaded not guilty, and on a trial by a jury was convicted and adjudged to pay a fine of $50 and costs, from which judgment he appeals. Glinton, Hart & Brewer, for appellant. M. E. Cutts, Attorney-General, for the State. MILLER, C. J. The evidence shows that the defendant kept a place, as charged in the indictment, where persons resorted for the purpose of playing games of billiards, pin pool, etc., and where the defendant also kept cigars and drinks for sale; that it was the custom or habit of persons resorting to this place to play billiards and pin pool, “and the losing party to pay for the game; the price of pin pool was five cents a cue, and billiards twenty cents a game. Sometimes, too, the man that got beat would treat. The evidence also leaves no doubt of the fact that the defendant knew that games of billiards and pin pool were played in the manner the evidence shows; in other words, that it was usual, in fact universal, for them to play those games with the agreement or understanding that the loser should pay for the games, and that they were in fact so played. I. The court, among other things, charged the jury that if they found the above enumerated facts they would be authorized to find the defendant guilty under the indictment. It is urged by counsel for appellant that these facts do not constitute the crime charged in the indictment. In other words, that playing the game of "pin pool" with the agreement that the losing party shall pay for the game, and he does so in fact, is not gambling, and, therefore, to suffer such playing in a house or place under the control or care of the defendant does not constitute the crime charged. money for any sum of The statute provides that to " play at any game or other property of any value" is gambling. it is clearly shown and not disputed that the defendant kept certain tables on which divers persons were in the habit of playing at what is |