110 N.Y. 403, Milliken v. Western Union Tel. Co.

• Citation: 110 N.Y. 403
• Party Name: JAMES F. MILLIKEN, Appellant, v. THE WESTERN UNION TELEGRAPH COMPANY, Respondent.
• Case Date: October 02, 1888
• Court: New York Court of Appeals

Page 403

110 N.Y. 403

JAMES F. MILLIKEN, Appellant,

v.

THE WESTERN UNION TELEGRAPH COMPANY, Respondent.

New York Court of Appeal

October 2, 1888

Submitted June 20, 1888.

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COUNSEL

William L. Snyder for appellant. The trust and confidence induced by undertaking any service for another is a sufficient consideration to create a duty in the performance of it. (Pars. on Contracts, 447; Coggs v. Bernard, 2 Ld. Ray. 919; Hammond v. Hussey, 51 N.H. 40; Jenkins v. Bacon, 111 Mass. 373; Kowing v. Manly, 49 N.Y. 192; West. Union Tel. Co. v. Fontaine, 58 Ga. 436; Same v. Blanchard, 68 id. 299; Same v. Shotter, 18 Cent. Law Jour. 230; N.Y. & Wash. Pr. Tel. Co. v. Dryburg, 35 Pa. St. 298; Parks v. Alta Cal. Tel. Co., 13 Cal. 423; Leonard v. Tel. Co., 41 N.Y. 544; Tyler v. West. Union, 60 Ill. 421; 2 Pars. on Contracts, 257; Johnston v. West. Union Tel. Co., 3 Fed. Rep. 365, No. 6.) This action may be maintained either in tort or contract. ( West. Union Tel. Co. v. Fontaine, 58 Ga. 438; Hammond v. Hussey, 51 N.H. 40; Jenkins v. Bacon, 111 Mass. 373; Kowing v. Manly, 49 N.Y. 192.)

Wager Swayne and David Keane for respondent. The complaint does not show any contract obliging the respondent

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to deliver to appellant the telegram in question. ( Dickson v. Reuter's Tel. Co., L. R., 2 C. P. Div. 62; affirmed, L. R., 3 C. P. Div. 1; Playford v. U. K. E. Tel. Co., L. R., 4 Q. B. 706; 2 Pars. on Contracts, § 8; Gray's Communication by Telegraph, § 66.)

RUGER, Ch. J.

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...