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Milliken v. W. U. Tel. Co., 110 N. Y., 403.

disclosed at the time of making the contract, applies in actions against

telegraph companies. 5. The law will generally imply a promise to pay, where one person has rendered valuable services to another at his request.

1 Action on contract for failure to deliver a telegraphic message. The allegations of the complaint were:

I. That plaintiff was at all the times hereinafter mentioned, and still is a dramatic writer, translator and dealer and broker in American and foreign plays.

II. Upon information and belief that the Western Union Telegraph Company, the above named defendant, is a domestic corporation duly existing under and by virtue of the laws of the

2 state of New York.

III. That the principal business of defendant is to receive and transmit messages by telegraph over certain lines of wire running through the state of New York and into and, through certain states and counties contiguous thereto, and to deliver the same and to receive, transmit and deliver messages from abroad transmitted by submarine telegraph cables in connection with its lines of wire and proper facilities operated by it for that purpose ; and the confidence with which the public is invited

3 to and does repose in the care with which defendant conducts its said business is a source of large profit and gain to said defendant.

IV. And the said defendant held out and represented to the world and to this plaintiff, that it would conduct its said business with reasonable care, diligence and dispatch, and that it would transmit, receive and deliver telegraphic and cable messages in as diligent, competent and correct manner with all convenient speed.

4 V. And plaintiff, relying upon said inducements and representations, entered into a contract with said defendant, as hereinafter set forth.

VI. That plaintiff on the 15th day of December, 1883, was applied to by a person who then desired to purchase from plaintiff a certain French play or dramatic composition entitled “ Pot Bouille,” owned by parties in the city of Paris, in the republic of France, and then being produced and exhibited in that city;

Milliken v. W. U. Tel. Co., 110 N. Y., 403.


5 and said applicant was then willing to pay plaintiff for said play

the sum of $3,000, but plaintiff was, at the time said application was made to bim, ignorant of the facts as to whether he could purchase said play, and the price he would be required to pay therefor; and in order to ascertain said facts plaintiff did on said 15th day of December, 1883, send a cable message to Thomas Linn, plaintiff's agent in Paris, which said message was as follows, to wit : “ What is the lowest price at which you can buy • Pot Bouille'?” And said Linn received said message

promptly and forwarded a reply to plaintiff, addressed “Mentor, 6

New York,” which said reply plaintiff subsequently learned was received by defendant, and was in defendant's possession on the 17th day of December, 1883.

That plaintiff called at defendant's office on said 17th day of December, 1883, and inquired if defendant had received a message addressed “Mentor, New York;” and plaintiff was informed by defendant that it had not received such message, but said defendant then represented and stated to plaintiff that any

message sent by cable from Paris to New York would be re7 ceived by and through defendant in New York; but said de

fendant did not then, nor at any time thereafter, deliver said message to plaintiff, although plaintiff alleges upon information and belief that said message, directed as aforesaid, was then in the possession and custody of defendant.

Plaintiff further says that on said 17th day of December, 1883, he requested defendant to register the name and address of plaintiff in order that said message might be promptly delivered to plaintiff, and defendant then and there, pursuant to its custom and in the regular course of its business, did register the name and address of plaintiff in a book kept by defendant for such purpose, as follows, to wit.: “Mentor, New York, James

, F. Milliken, No. 19 West Twenty-fourth street, New York City;" and plaintiff then informed defendant that he was expecting a message from Paris, addressed “Mentor, New York," and that he believed said message had been sent and should be in the possession and custody of defendant; and that said message was of great importance to plaintiff, and involved a transaction with regard to the sale of a play by plaintiff, and said trans


Milliken v. W. U. Tel. Co., 110 N. Y., 403.

action involved a large sum of money; and that plaintiff could 9 do nothing with regard to it until he had received said message; and defendant then and there promised and agreed to and with the plaintiff that defendant would send such message, without delay, to plaintiff, at No. 19 West Twenty-fourth street, in said city of New York, if said message had been received or should be received by defendant; and defendant held out and represented to plaintiff, as hereinbefore set forth, that defendant would deliver said message to plaintiff safely, promptly and with diligence and dispatch; and plaintiff, relying upon said repre

10 sentations and inducements, and reposing confidence in the care with which defendant conducted its said business, as aforesaid, did then and there contract and agree with defendant for the delivery of said message by defendant to plaintiff, and said defendant undertook and agreed to and with this plaintiff to deliver said message to plaintiff at No. 19 West Twenty-fourth street, in the city of New York, safely, promptly and 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 11 receive or accept pay or reward.

VII. That defendant received said message and reply, addressed “Mentor, New York," prior to the 19th day of December, 1883, as plaintiff is informed and believes, but said defendant, not regarding its said promise and undertaking, and well knowing the importance of said message, did not take due care to deliver said message to plaintiff, as agreed, although thereafter frequently solicited and requested to do so by plaintiff; and did not then deliver said message to plaintiff, nor at any time after

12 wards, but, on the contrary, the defendant so negligently and carelessly conducted itself with respect to said message and the delivery thereof that, by and through the mere carelessness, negligence and improper conduct of the defendant, its servants and employees said message was never delivered to plaintiff,and is still in the possession and custody of defendant; and by reason of the premises in that behalf, and in consequence of the negligence of defendant as aforesaid, and not through any negligence or fault of this plaintiff, plaintiff lost the sale of said play, and

Milliken v. W. U. Tel. Co., 110 N. Y., 403.

13 suffered thereby loss and damage in a large sum of money, to

wit, in the sum of $1,400; and plaintiff alleges that he has since ascertained the fact to be that said message contained information that plaintiff could purchase and secure said play at a price not to exceed 8,000 francs; and plaintiff alleges that if defendant had delivered said message to plaintiff, as agreed, plaintiff would have sold said play for $3,000, and would have realized thereby a profit of not less than $1,400.

WHEREFORE plaintiff demands judgment against defendant for $1.400 with interest from January 1, 1884, besides the costs 11 of this action.

Defendant demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action.

The Superior Court at Special Term sustained the demurrer, holding that there was no contract shown, nor any privity of contract, nor any consideration moving to the defendant sufficient to support an action.

The General Terin affirmed the judgment, on the view that 15

the averments of the complaint did not show that the so-called contract was supported by any consideration; that it was not averred that the promise to deliver the message was made in consideration of the reward or the promise to pay a reward. Nor did the complaint aver a legal duty upon defendant, either in general or to the plaintiff particularly, to deliver the message upon which an implied contract to do the duty would arise.

The Court of Appeals reversed the judgment.

Roger, Ch. J. The questions involved in this appeal are 16

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 the 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

Milliken v. W. U. Tel. Co., 110 N. Y., 403.

or informally averred, or that the pleading lacks definiteness and 17 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

18 of law should be set forth in the pleading, provided that 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 arrange

20 ment 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


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