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Milliken v. Western Union Telegraph Co.

18 N.Y. St. Rep. 328 Court N.Y. Decision date 1888-10-02 English

Delivered by Ruger, Ch. J.

Contents

Majority

p. 328
James F. Milliken, App’lt, v. The Western Union Telegraph Company, Resp’t.[1]
(Court of Appeals,
Filed October 2, 1888.)

Headnote

1. Pleadings—Complaint—Demurrer—Assumption.
On demurrer, it must be assumed that the facts stated in the complaint, as well as such as may, by reasonable and fair intendment be implied from the allegations, are true.
p. 329
2. Same—What not sufficient to sustain demurrer.
It is not sufficient to sustain a demurrer to show that the facts are im perfectly and informally averred or lack definiteness, or that they are argumentatively stated.
3. Same—Sufficient of complaint.
The legal inferences which may be implied from the facts stated need not be stated, but if from the allegations of the complaint it appears that the defendant incurred a liability, whether arising from contract or from an omission to perform some legal duty, the complaint should be sustained.
4. Same.
The present system of pleading does not require that the conclusions of law should be set forth in the pleading, provided that the court can see from any point of view that the facts stated impose a legal obligation upon the defendant.
5. Same.
The complaint averred that one Liner sent from Paris to plaintiff, addressed to “ Mentor, New York,” a message concerning the business of plaintiff; that plaintiff went to defendant’s office and informed its ser vants that he was the person intended by “Mentor,” and gave to them his address, which they registered in a book; that said servants represented to the plaintiff that any cable message from Paris to New York would be received by and through defendant in New York, and said defendant undertook, promised and agreed with plaintiff to deliver said message when received to plaintiff, at the address he had given, safely and promptly, and plaintiff then offered to pay said defendant in advance for said service, but that defendant “then declined to receive or accept pay or reward;” that the message had been received by defendant, but defendant had not delivered it, and that the plaintiff was thereby damaged. Held, that a cause of action is sufficiently stated under the rules of law applicable to questions raised by demurrers.
6. Same—Complaint—Failure to allege promise to pat—Promise will BE IMPLIED.
The failure to allege in the complaint a promise to pay for such services is not fatal to the complaint, and on demurrer the law will imply such a promise. Reciprocal promises are a valuable consideration for each other and the law will usually imp'y a promise to pay for valuable services rendered to a party upon his request.
7. Telegraph campant—Principal and agent—Right of principal to MAINTAIN ACTION ON CONTRACT BT AGENT.
A principal is entitled to maintain an action upon a contract made by his agent with a third person, although the agency is not disclosed at the time of making the contract. This principle has been frequently applied in actions against telegraph companies and is now settled law.
8. Same—Special mode of delivert.
A telegraph company is authorized to contract with the person expecting to receive a message for a special mode of delivery. How far a telegraph company is liable generally to a person receiving a message for having negligently changed the terms of the dispatch in course of transmission, discussed.
Appeal from a judgment of the general term of the superior court of the city of New York, entered upon an order made March 1, 1886, which affirmed an order made by the trial court sustaining demurrer to complaint.
The ground of demurrer was that the complaint did not state facts sufficient to make a cause of action.
p. 330
_ The complaint averred that the defendant is a corpora-' tian, etc,, that the business of defendant is to “receive and transmit messages by telegraph over wires,” etc., and “to receive, transmit and deliver messages from abroad,” sent over submarine telegraph cables, for connection with its lines of wire,” etc.; that one Liner sent from Paris to plaintiff addressed as “Mentor, New York,” a message concerning the business of plaintiff; that plaintiff went to defendant’s office, and informed its servants that he was the person intended by “Mentor” and gave to them his address which they registered in a book; that said servants represented to the plaintiff that any message sent by cable from Paris to New York would be received by and through defendant in New York, and said defendant undertook, promised and agreed with plaintiff to deliver said message when received to_ plaintiff, at the address he had given, safely, promptly, with diligence and dispatch, and plaintiff then offered to pay and reward said defendant in advance for said service, and for registering plaintiff’s name and address, but said defendant, “then declined to receive or accept pay or reward;” that the message had been received by defendant, but defendant had not delivered it, etc., to the damage, etc.
Wm. L. Synder, for app’lt; Wager, Swayne & David Keane, for resp’t.

The question involved in this appeal is raised by a demurrer to the complaint, alleging that it does not state facts sufficient to constitute a cause of action. Both the special and the general terms sustained the deJ murrer, and ordered judgment for defendant. We are of the opinion, however, that the complaint does state a cause of action.

It must be assumed, at the outset, that the facts stated therein, as well as such as may by reasonable and fair intendment, be implied from the allegations made, are true: It is not sufficient to sustain a demurrer to show that the facts are imperfectly or informally averred, or the pleading lacks definiteness and precision, or that the material facts are argumentatively stated. Lorillard v. Clyde, 86 N. Y., 384 ; Marie v. Garrison, 83 id., 14. If-from the facts stated it appears that the defendant incurred a liability to the plaintiff, whether arising upon contract or from an omission to perform some legal duty or obligation resting upon it, the complaint should be sustained whether the plaintiff has set forth the legal inferences which may be implied from the facts stated or not. White v. Madison, 26 N. Y., 117 ). The present system of pleading does not. require that the conclusion of law should be set forth in the pleading, provided the court can see, from any point of view, that the facts stated impose a legal obligation upon the defendant. Eno v. Woodworth, 4 N. Y., 249 .

p. 331
The inquiries in this case are, first, whether the defendant was competent to enter into the contract alleged by the complaint to have been made, and, secondly, whether a valid contract was made between it and the plaintiff to do or perform the service undertaken by it.

The first question may be briefly disposed of, as no point is made as to the competency of the defendant to contract to deliver telegraphic messages to persons addressed, and the sole inquiry is, therefore, whether the complaint shows that it has made a valid contract to do so.

The demurrer concedes that an agreement was made by which the defendant promised to deliver a message, expected to be received by it from the plaintiff’s agent in Paris, addressed “ Mentor, New York,” to the plaintiff at his residence, as soon as the same should come into its possession.

The facts alleged show that the plaintiff _ had made arrangements with his agent in Paris to obtain information upon business, in which the plaintiff was solely interested, and transmit it by telegraph to New York to the address of “ Mentor. ” It also appears that the message was really intended for the plaintiff, and that he was entitled to receive it from the defendant.

The sole claim of the defendant, therefore, is reduced to the contention that the complaint does not show a good or sufficient consideration for its promise .to deliver such message, and that no legal duty rested upon it to deliver such message to the plaintiff. We think that this complaint, under the rules of law applicable to questions raised by demurrers, does state a cause of action on the part of the plaintiff against the defendant. We can see no reason why the defendant is not liable to the plaintiff upon the contract made by it with his agent in Paris for the transmission and delivery of the message. So far as appears the plaintiff was the only party interested in the business to which the message related, and the only person who could be benefited by the performance of that contract. It is quite obvious, from the averments in the complaint, that the defendant secured possession of the message under a contract with the sender to transmit and deliver it to the person answering the description of its address in New York. Baldwin v. U. S. Tel. Co., 1 Lans., 125 ; Leonard et al. v. N. Y., etc., Tel. Co., 41 N. Y., 544 . If the defendant had been unable, by reason of the fictitious address, to identify the person for whom it was intended, it would have been a sufficient excuse for its non-delivery, but this difficulty was obviated before the duty of delivery fell upon the carrier, by the information given to and accepted by it as satisfac-

p. 332
tory evidence of the identity of the person for whom it was intended.

The rule that a principal is entitled to maintain an action upon a contract made by his agent with a third person, although the agency is not disclosed at the time of making the contract, has many illustrations in the reported cases and is elementary law. Coleman v. Bank of Elmira, 53 N. Y., 388 ; Briggs v. Partridge, 64 id., 357; Ford v. Williams, 21 How. (U. S.), 288; Dykers v. Townsend, 24 N. Y., 57 . This principle has been frequently applied in actions against telegraph companies and is now the settled law of this country in respect to such corporations. De Rutte v. N. Y., Albany and Buffalo Tel. Co., 1 Daly, 547 ; Leonard et al. v. Tel. Co., 41 N. Y., 544 ; N. Y. and W. Tel. Co. v. Dryburg, 35 Pa., 300 ; Baldwin v. Tel. Co., 1 Lans., 128 .

In Leonard v. Tel. Co. an action was sustained on account of a change made in the language of a telegram passing between two of the plaintiff’s agents, by which a loss was inflicted upon their common principal.

In Playford v. United Kingdom Electric Tel. Co. (L. R., 4 Q. B., 706) in an action brought by the person receiving a message against the telegraph company for having negligently changed the terms of the dispatch in course of transmission whereby the plaintiff suffered damage by acting upon it as received, it was held that the company was under no contract obligation to the plaintiff to deliver the message correctly, but it was conceded if the senders had been the agents of the plaintiff in the business to which the message related, that a recovery could have been had. Some of the authorities in this country go still further and hold that a telegraph company rests under a legal duty to the person to whom a message is addressed, when he is the party solely interested, to transmit it correctly and deliver it to him; but it is unnecessary in this case to pass upon that question, and we therefore express no opinion upon it. De Rutte v. Tel. Co., supra; Wadsworth v. W. Union Tel. Co., Albany L. J., vol. 38, p. 87.

We are therefore of the opinion that the plaintiff could avail himself of the obligation of the original contract for the transmission of the message, and recover for a breach thereof such damages as he might be able to show he had suffered from the alleged breach.

We are also of the opinion that, aside from the contract referred to, the complaint states a valid contract between the plaintiff and defendant made at New York in anticipation of the arrival of the message at that place. It alleges that the plaintiff stated to the defendant that he was expecting a message from Paris addressed “Mentor, New York,” and was the individual intended by such address,

p. 333
and requested the defendant to deliver it to him at his residence in that city. The plaintiff then offered to pay for such service in advance, • which the defendant declined to accept, but entered plaintiff’s name in its register as that of a person entitled to receive messages addressed to “ Mentor,” and promised to deliver such message, in accordance with such request, at plaintiff’s residence when received by it. That this was a service which the defendant was authorized to contract to perform is obvious from the usual course of telegraphic business and the necessities of the case. The fact that the defendant had contracted with another person to transmit and deliver the same message, especially as it claims that it did not thereby come under any legal duty to the plaintiff to seek him out and deliver the message, would not preclude it from making a contract with the person addressed for a special mode of delivery to him. If the plaintiff intended to go to a distant city, had contracted with defendant to repeat such message to him there, could there be a doubt as to the validity of such a contract? And we think it equally within the contractual power of a telegraph company to agree to such special delivery, either without or within the limits of its usual delivery, with the person expecting to receive a particular message. It is said, however, that there is no consideration alleged for this promise.

If it can fairly be inferred from the facts alleged that the parties expected compensation to be made for the services promised, and the payment of such agreed compensation could be enforced by the promisee, a sufficient consideration appears for the undertaking. There is no doubt but that reciprocal promises are a valuable consideration for each other, and that the law will usually imply a promise to pay for valuable services rendered to a party upon his request. Pollock on Contracts, 161; Coleman v. Eyre, 45 N. Y., 38 ; Briggs v. Tillotson, 8 Johns., 304 .

That it was expected by the parties that the plaintiff should pay for the delivery of the message, is obvious from his offer to do so in advance, and although this was waived by the defendant, that did not preclude it from demanding and enforcing the collection of payment for services performed by it in pursuance of plaintiff’s request. If the complaint had, in terms, alleged a promise to pay for such services, this would have authorized a finding of such promise upon proof of the facts stated in the complaint, and we think that upon a demurrer the law will imply such a promise, and that the complaint must, therefore, be held to have alleged a good cause of action. Marie v. Garrison; Eno v. Woodworth, supra; Justice v. Lang, 52 N. Y., 323 .

p. 334
Nor the reasons stated, we think the demurrer should have been overruled.

The judgments of the courts below should be reversed, and the demurrer overruled, and the defendant have leave to answer the complaint upon payment of all costs and disbursements accruing since "the demurrer was interposed.

All concur; Earl, J., on second ground stated in opinion.