
    Western Union Telegraph Company, App’lt, v. Robert Milliken, et al., Resp’ts.
    
      (New York Court of Common Pleas, General Term,
    
    
      Filed February 7, 1887)
    
    1. Practice—Demurrer.
    A pleading to which a demurrer has been interposed must speak for itself.
    2. Same—Counterclaim—Privity between parties.
    The complaint sets up a running account between the parties. The cause of action set up in the counterclaim , if sustainable at all is for negligence, and as there is nothing in tile ease to show any privity of contract between plaintiff and defendant the demurrer of the plaintiff should have been sustained.
    This is an appeal from a judgment rendered in the district court of the city of Now York for the First judicial district overruling the demurrer interposed by the plaintiff to the counter-claim set upon defendants’ answer and in favor of the plaintiff for the sum of four dollars and eleven cents.
    The action was brought to collect a debt owing by the defendants to- the plaintiff for services in transmitting telegraphic messages. The defendants admit the indebtedness, but counter-claim a debt due them from plaintiff by reason of damages which they have sustained on account of the plaintiff addressing and delivering to them a message containing an order to sell 20,000 barrels of oil, which order was intended for and delivered to plaintiff for other brokers. The defendants were brokers for buying and selling stocks, bonds and oil, and in the carrying on of their business the plaintiff received messages for the defendants ordering them to purchase and sell stocks, oil, etc., and also transmitted to defendants’ customers reports of such purchases and sales, the plaintiff having a special office on the Exchange for that purpose.
    
    
      Van Duzer and Taylor and Davicl Milliken, for resp’ts.
    1. The plaintiff company is undertaking the duty of transmitting messages entered impliedly into a contract with the defendants to diligently send their messages to their customers, and impliedly warranted that it had authority to send any message which it should deliver to defendants.
    2. The liability of telegraph companies is regulated by contract. They are bound to transmit messages with care and diligence, and if they fail in this they become liable. Breese v. U. S. Tel. Co., 48 N. Y., 141; Leonard v. N. Y., etc., Tel Co., 41 id., 544; Rittenhouse v. Tel. Co., 44 id. 265; De Rutte v. N. Y. A. & B. Tel. Co., 1 Daly, 547; Shearman & Redfield on Negligence, 558, 560; Aiken v. Tel. Co., 5 S. C., 358; La Grange v. South Western Tel. Co., 25 La. Ann., 383; Western Union Tel. Co. v. Hope, 11 Abb. App., 289; 3 Ann. Law Review., 777.
    3. The receiver as well as the sender of a message is privy to the contract under which the service was performed, and the_ person put to loss, whether sender or receiver, may maintain an action against the company for the recovery of the same. Breese v. W. U. Tel. Co., 48 N. Y., 132; Elwood v. W. U. Tel. Co., 45 id., 556; N. Y. & W. Tel. Co. v. Dryburg, 35 Penn., 298.
    4. An error in transcribing the direction and a consequent misdelivery are prima facie evidence of neglect and want of care in the operator. Baldwin v. The United States Telegraph Company, 45 N. Y., 751.
    5. The delivery was of a message to persons for whom it was not intended. It can be considered only therefore as a direct message and order from the plaintiff to the defendants.
    6. The receiver of a message has a right to assume that the company is the agent of the sender and is clothed with authority, and should there be no such authority, then the company contracts with the receiver.
    7. The counterclaim is connected with the subject of the action, which is the transmission of messages.
    8. No particular form of words is necessary to make a pleading a counterclaim; and if the party had, in any reasonable language intimated that he intended to make a personal claim in his own favor against the plaintiff, it would have been sufficient. Bates v. Rosekrans, 37 N. Y, 409; Equitable Life Association Society v. Cuyler, 75 N. Y. 514.
    9. If the answer advised the plaintiff that a counterclaim was intended to be set up, it would have been sufficient information to him of the nature of the pleading. A counterclaim must be so alleged as to advise the opposite party. Equitable Life Association Society v. Cuyler, 75 N. Y., 514.
    10. The only ground of demurrer urged by plaintiff is that the counterclaim of defendants, sets up a cause of action in tort.
    
    11. A complaint containing a statement of facts constituting a cause of action on contract sustained by proof of such facts upon the trial, authorizes a recovery, although the complaint is in form for a conversion and the summons in the action is for relief. Conaughty v. Nichols, 42 N. Y., 83.
    12. A variance between an allegation in a pleading and the proof is not material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Section 539, Code Civil Procedure.
    13. The appeal herein should therefore be dismissed with costs.
    
      Dillon and Swayne, for app’lts.
   Per Curiam.

It is now well settled in practice, that a pleading to which a demurrer has been interposed, must be its own mouth-piece. The complaint in the action sets up a running account between the parties which the dedendants admit to the extent of $4.11, but set up a counterclaim as a defense, to wit. :

That on or about May 16,1884, plaintiff delivered to the defendant, Robert Milliken, a telegraphic message by mistake, which was not intended for him, upon which he acted, and upon which he sustained a loss, the amount of which these defendants seek to recoup against the plaintiff’s claim.

The answer avers that, through inattention, the plaintiff changed and altered said message, and wrongfully and negligently delivered the same, which was not intended for them, to these defendants. This averment in the answer characterizes the nature of the action as one of tort, and not of contract.

There is nothing in the case as presented to show any privity of contract between the plaintiff and the defendants. The cause of action set up in the counter-claim, if it can be sustained at all, must be for negligence, and upon this point this case is distinguishable from the authorities cited in its support.

We thing the demurrer should have been sustained, and. that the order overruling it should be reversed, with costs.  