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Milliken v. Western Union Tel. Co.

Court of Appeals of the State of New York
Oct 2, 1888
18 N.E. 251 (N.Y. 1888)


Submitted June 20, 1888

Decided October 2, 1888

William L. Snyder for appellant.

Wager Swayne and David Keane for respondent.

The questions involved in this appeal are 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 General Terms sustained the demurrer, 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 that 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 conclusions of law should be set forth in the pleading, provided the court can see, from any point of view, from the facts stated that a legal obligation rested upon the defendant. ( Eno v. Woodworth, 4 N.Y. 249.)

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 it was duly received by the defendant, but was not delivered by it.

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 the same 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 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 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 satisfactory 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 E.M. Tel. Co., 1 Daly, 547; Leonard v. Tel. Co., 41 N.Y. 544; N.Y. W.P. Tel. Co. v. Dryburg, 35 Pa. 300; Baldwin v. Tel. Co., 1 Lans. 128.)

In Leonard v. Telegraph Company 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 Telegraph Company (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.U. Tel. Co., 38 Alb. L. Jour. 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, 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, intending 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 Cont. 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 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, supra; Eno v. Woodworth, supra; Justice v. Lang, 52 N.Y. 323.) For the reasons stated, we think the demurrer should have been overruled.

The judgments of the courts below are, therefore, 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.

Judgment reversed and ordered accordingly.

Summaries of

Milliken v. Western Union Tel. Co.

Court of Appeals of the State of New York
Oct 2, 1888
18 N.E. 251 (N.Y. 1888)
Case details for

Milliken v. Western Union Tel. Co.

Case Details


Court:Court of Appeals of the State of New York

Date published: Oct 2, 1888


18 N.E. 251 (N.Y. 1888)
18 N.E. 251
18 N.Y. St. Rptr. 328

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