
    William N. White and Alice L. White, Respondents, v. Western Union Telegraph Company, Appellant.
    First Department,
    December 6, 1912.
    . Contract — breach, of contract to send, cablegram — pleading — complaint — failure to state cause of action — conclusions of law.
    A complaint in an action to recover damages for the breach of an alleged contract to send and- deliver a cablegram alleged, in substance, that prior to a certain date the plaintiffs were in correspondence with a foreign produce merchant; that as a result of the correspondence said merchant offered to sell to. the plaintiffs a certain number of crates of winter onions, and requested plaintiffs to reply by cable; that for a valuable consideration they'delivered to the defendant to be sent to said merchant the following cablegram: “ Onions offered are crates 80 kilos net; ” that the defendant neglected to send such cablegram; that had it been sent the plaintiffs would "have received the onions, and on a resale would have realized on the transaction a certain profit, for which judgment was demanded. , ' '
    Held, that the complaint .failed to' state a cause of action, hut since defendant moved that plaintiffs have judgment for nominal damages, its motion will be granted.
    The allegation that “plaintiffs, for a valuable consideration, delivered the following cable to the defendant to be sent,” taken literally, means that defendants gave plaintiff something, of value for the privilege of sending the message, but if construed as intended, it was insufficient because of the failure to state that the consideration'was the payment of the usual charges; it being a mere conclusion of law.
    Appeal by the. defendant, the Western Union Telegraph Company, from an order of the Supreme Court, made, at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of June, 1912, denying the defendant’s motion for judgment on the pleadings,
    
      George H. Fearons and Francis Raymond Stark, for the, appellant.
    
      Charles Caldwell, for the respondents.
   McLaughlin, J.:

Action to recover damages for the breach of an alleged contract to send and deliver a' cablegram. The complaint alleges, in substance, that the defendant, a domestic corporation, is engaged in the business of conveying messages by telegraph and cable; that prior to the 12th of September, 1911, plaintiffs were in correspondence with a merchant by the name of Behn, of Valencia, Spain, who was there engaged in the produce business; that as a result of the correspondence Behn offered to sell to the plaintiffs 10,000 crates of Winter onions at 1 shilling, 11 pence per crate, cip. New York,” and requested plaintiffs to reply by cable; that on the 12th of September, 1911, for a valuable consideration, they delivered to the defendant, to be sent to Behn at the place named the following cablegram: Onions offered are crates 20 kilos net; ” that the defendant utterly failed and neglected to send such cablegrams, and by reason thereof the same was never sent or delivered; that had it been sent, the plaintiffs would have received the onions and on a resale by them would have realized on the transaction a profit of $3,800, for which judgment was demanded.

The answer admitted the defendant’s incorporation and that the cablegram referred to in the complaint was not sent or delivered to Behn at Valencia, Spain, and denied the other material allegations of the complaint.

After issue had been joined the defendant moved upon the pleadings that the plaintiffs have judgment against the defendant for nominal damages only. The motion was denied and defendant appeals.

I am of the opinion that the motion should have been granted. The complaint, if it states a cause of action at all — which I do not believe it does — states one only for nominal damages. There is no allegation in it that the defendant promised for a valuable consideration to send it or that the .message was delivered to defendant and its usual charges paid or tendered. (Macpherson v. Western Union Tel. Co., 52 N. Y. Super. Ct. 232.) The allegation that “plaintiffs for a valuable consideration, delivered the following cable to the defendant to he sent, ” if taken literally, means that the defendant gave the plaintiffs something of value for the privilege of sending the cablegram. But if this allegation be treated, as it doubtless was intended, as setting forth a consideration paid to the defendant, it is insufficient because of the failure to state that the consideration was the payment of the usual charges. (See 37 Cyc. 1722.) The allegation “ for a valuable consideration ” is not the statement of a fact but a conclusion of law. (Browning, King & Co. v. Terwilliger, 144 App. Div. 519.)

' The complaint, as it seems to me, is defective, because it. does not show that any damages were sustained by reason óf the defendant’s failure to forward and deliver the cablegram. There is no allegation in the complaint to the effect that Behn had offered to sell the onions at the price stated in the message delivered to defendant. Nor was the message an acceptance of any offer. The message, so far as appears, was an inquiry as to whether the “onions offered are crates 20 kilos net.” What the answer would have been it is useless to conjecture. In this respect the allegations of the complaint fall within the rule stated in 37 Oye. 1760, as follows: “Where the message relates to a proposed contract between plaintiff and another person, but is neither an acceptance of a previous offer, nor itself a definite offer, but only an invitation to submit an offer or to meet or correspond with the sender for the purpose of further negotiation, the failure duly to deliver the message is not, as a matter of law, the proximate cause of the failure of the negotiations to result in a binding contract, and damages for the loss of a contract which might or might not have resulted from further negotiations being too remote and uncertain, only nominal damages can be recovered. ” And had the message been sent it does not appear what Behn’s answer would have been or what; the plaintiffs would have done on receipt of the same.

For the foregoing reasons I think the complaint fails to state any cause of action, but inasmuch as the defendant’s motion was that the plaintiffs have judgment for nominal damages only, the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingraham, P. J., Laughlin, Miller and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  