Milliken v. Western Union Tel. Co

CourtNew York Court of Appeals
Citation18 N.E. 251,110 N.Y. 403
PartiesMILLIKEN v. WESTERN UNION TEL. CO.
Decision Date02 October 1888

OPINION TEXT STARTS HERE

Appeal from superior court of New York city, general term.

Action by James F. Milliken against the Western Union Telegraph Company for its failure to deliver a message addressed to plaintiff. A demurrer to the complaint was sustained, and plaintiff appeals.

Wm. L. Snyder, for appellant.

Wager Swayne and David Keane, for respondent.

RUGER, C. J.

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 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 N. Y. 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, that the facts stated impose a legal obligation 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 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. Telegraph Co., 1 Lans. 125; Leonard v. Telegraph 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, 53 N. Y. 388;Briggs v. Partridge, 64 N. Y. 357;Ford v. Williams, 21 How. 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. Telegraph Co., 1 Daly, 547;Leonard v. Telegraph Co., 41 N. Y. 544;Telegraph Co. v. Dryburg, 35 Pa. St. 300; Baldwin v. Telegraph Co., 1 Lans. 128.

In Leonard v. Telegraph 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. Telegraph Co., L. R. 4 Q. B. 706, in an...

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29 cases
  • Wells v. W.U. Tel. Co.
    • United States
    • Iowa Supreme Court
    • 23 Noviembre 1909
    ... 123 N.W. 371 144 Iowa 605 A. JUDSON WELLS, Appellee, v. WESTERN UNION TELEGRAPH COMPANY and B. G. LYMAN, Appellants Supreme Court of Iowa, Des Moines November 23, ... also, as bearing upon this proposition May v. Telegraph ... Co., 112 Mass. 90; Milliken v. W. U. Tel. Co., ... 110 N.Y. 403 (18 N.E. 251, 1 L. R. A. 281); Leonard v ... Tel. Co., 41 ... ...
  • Western Union Telegraph Co. v. Schriver
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 16 Noviembre 1905
    ... ... neither the principal of the sender nor of the addressee ... mcCormich v. Western Union Tel. Co., 25 C.C.A. 35, 79 F. 449, ... 38 L.R.A. 684; Morrow v. Western Union Tel. Co ... (Ky.) 54 S.W. 853; Western Union Telegraph Co. v ... four classes: (1) Those which assert a duty and liability to ... the undisclosed principal of the sender. Milliken v ... Western Union Tel. Co., 110 N.Y. 403, 18 N.E. 251, 1 ... L.R.A. 281; Harkness v. Western Union Tel. Co., 73 ... Iowa, 190, 34 N.W. 811, ... ...
  • Ultramares Corp. v. Touche
    • United States
    • New York Court of Appeals Court of Appeals
    • 6 Enero 1931
    ...Tel. Co., 46 Hun 542; DeRutte v. New York, Albany & Buffalo Electro Magnetic Telegraph Co., 1 Daly, 547;Milliken v. Western Union Tel. Co., 110 N. Y. 403, 410,18 N. E. 251,1 L. R. A. 281. The intimacy of the resulting nexus is attested by the fact that, after stating the case in terms of le......
  • W.U. Tel. Co. v. Potts
    • United States
    • Tennessee Supreme Court
    • 7 Noviembre 1908
    ...in the telegram is the undisclosed principal of both the sender and the sendee, he may recover. Leonard v. Telegraph Co., supra; Milliken v. Telegraph Co., supra. This the case we have before the court now for consideration. Both the sender and the sendee were the agents of the undisclosed ......
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