
    JAMES F. MILLIKEN, Appellant, v. THE WESTERN UNION TELEGRAPH Co., Respondent.
    
      Pleading—Telegraph companies— Contract.
    
    A complaint in an action against a telegraph company for breach of an alleged contract to deliver at plaintiff’s residence, a cable dispatch addressed “Mentor, New York,” which alleges a promise on the part of the company, and that the plaintiff offered to “pay ard reward said defendant in advance for said service,” which was refused, but which does not show that the promise of the company was made in consideration of the reward or of the agreement to pay the same, fails to state facts constituting a cause of action, and is demurrable on that ground.
    -Such a complaint cannot be upheld on the ground that the trust and confidence of plaintiff in the company formed a sufficient consideration for the contract, where it is not alleged that defendant parted with property on the faith of defendant’s promise, or omitted to do anything which, but for defendant’s promise, he might have done for his own benefit.
    Primarily, the breach of a legal duty on the part of the telegraph company to deliver the message to the party to whom it is addressed, upon tender of proper compensation, gives an action in tort only ; but if an implied contract to do the duty, which may be stated in the complaint as if specifically made, arises from the circumstances, then the complaint should state the defendant’ legal obligation in respect of the thing promised to be done by the alleged contract.
    This rule applied to a case where the alleged promise by the company was to deliver a message at a place other than their office, viz., at plaintiff’s address.
    Before Sedgwick, Oh, J., and Truax, J.
    
      Decided March 1, 1886.
    Appeal by plaintiff from judgment dismissing complaint entered upon order sustaining demurrer to complaint.
    The ground of demurrer was that the complaint did not state facts sufficient to make a cause of action.
    
      William L. Snyder, for appellant.
    I. The trust and confidence induced by undertaking any service for another, is a sufficient consideration to create a- duty in the performance of it. Here defendant admits that it undertook to perform the service, and hence it is hable for the neglect or omission to perform it (1 Parsons Contr. 447; Coggs v. Bernard, 2 Ld. Ray. 919; Hammond v. Hussey, 51 N. H. 40 ; Jenkins v. Bacon, 111 Mass. 373 ; Knowing v. Manly, 49 N. Y. 192). 1. The defendants having promised to render the service, and the plaintiff having tendered payment therefor, it cannot now be said that the contract was not within the line and scope of its business. Hence a legal duty devolved upon defendant to perform the undertaking (West. Union Tel. Co. v. Fontaine, 58 Ga. 436 ; Same v. Blanchard, 68 Ga. 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 Parsons Contr. 257, f). 2. The tender of money, or offer to pay money, is, in all respects, equivalent to payment, as between the parties to such a contract. Plaintiff exhausted all the means, by an offer to pay, and could do nothing more on his part. If defendant chose to waive its right to take the money, such waiver will not defeat the rights of plaintiff in this action (Tyler v. West. Union Tel. Co., 60 Ill. 421). 3. This court has held this doctrine in the late case of McPherson v. Western Union Tel. Co. (52 Super. Ct. 232), where a demurrer to the complaint was sustained on the ground that it failed to allege payment or tender. 4. Here the complaint shows an offer to pay, and waiver of such payment by defendant.
    II. If defendant had performed, and had delivered the message, it could have recovered in an action against plaintiff for the service so rendered, as such service would have been rendered at his request, and an action will lie against it for damages for failure to deliver.
    III. Should this court affirm the judgment below, the law thereby established will be this : A telegraph company, in order to escape liability in every case, has only to refuse to take payment in advance, since under the decision below, the element of payment in advance is essential to constitute a contract. This idea of taking pay before the service is rendered is not in harmony with usage or custom in other branches of commerce, and the rule has been adopted by telegraph companies solely for their own convenience and benefit.
    
      Dillon & Swayne, and David Keene, for respondent.
    I. The plaintiff being a person to whom a cable message was addressed, and not the sender of the message, and no privity of contract being shown with the sender, if any liability has been incurred to him by the defendant, it is a liability ex delicto and not ex contractu (Dickson v. Reuter’s Tel. Co., L. R. 2 C. P. Div. 62 ; affirmed, L. R. 3 C. P. Div. 1; Playford v. United Kingdom Electric Teleg. Co., L. R. 4 Q. B. 706 ; Story Contra. § 981).
    II. A tender of compensation does not afford a ground for an action where there was no legal obligation resting upon the defendant to enter into a contract with the party by whom the compensation was tendered. As the defendant had already been paid in full by the sender, it could not accept compensation over again for the same service from another party, and therefore it is clear that there was no legal obligation resting upon it to enter into a separate and independent contract with this plaintiff to perform a service for which it had been paid already by another party. Let the plaintiff sue upon the contract made by the company with the sender of the message, or, if not, let him sound his action in tort. He cannot establish an independent and separate contract by the company with himself—1st, because it would have been unlawful for the defendant to have accepted compensation from the plaintiff for the same service for which it had already been paid in full by the sender ; 2d, no consideration can be shown. All that plaintiff claims in his complaint is to have made a tender, which was refused by the defendant. The refusal of the defendant to accept pay or reward proves the voluntary nature of the alleged promise and the absence of any intention to enter into a contract.
    III. A telegraph company is liable on contract only to the sender of the message, except where the sender of the message is the agent of the receiver, in wiaich case the latter, being the real party in interest, may allege that fact in his complaint, and sue upon the contract entered into by the company with his agent, the sender.
    IV. But a telegraph company does not incur in regard to the saíne message for a single consideration a liability upon two distinct and separate contracts wholly independent of each other, one with the sender and one with the receiver. A telegraph company is only entitled to receive compensation once and from one party, and it enters only into one contract with regard to each message.
    V. An attempt therefore on the part of a receiver of a message to (jold a telegraph company liable to him ex contractu, other than upon the contract entered into between the company and the sender of the message must necessarily fail, because, no matter what the receiver may allege in his complaint, it will be apparent upon the face thereof that no consideration passed between him and the company, without which, of course, he would only allege at most a nudum pactum, and not a contract (Thorne v. Deas, 4 Johns. 84).
   Per Curiam.

The complaint avers that the defendant is a corporation, &c., that the business of defendant is to “ receive and transmit messages by telegraph over wires, &c.,” and “to receive, transmit, and deliver messages from abroad,” sent over submarine telegraph cables, for connection with its lines of wire, &c.; that one Liner sent from Paris to plaintiff, addressed as “ Mentor,” at New York, a message concerning the business of plaintiff; that plaintiff went to defendant’s office, and informed its servants that he was the person intended by “ Mentor,” and gave to them his address, which they registered in a book ; that said servants represented to the plaintiff that any message sent by cable from Paris to New York, would be received by and through defendant in New York, and said defendant undertook, promised and agreed with plaintiff to deliver said message when received, to plaintiff, at the address he had given, safely, promptly, 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 receive or accept pay or reward that the message had been received by defendant, but defendant had not delivered it, &c., to the damage, &c.

The cause of action which the plaintiff relies on, is the contract to deliver the message at his address, and its breach. The averments do not show, however, that the so-called contract was supported by any consideration. The complaint alleges that the plaintiff offered “to pay and reward said defendant,” but it is not averred that the. promise was made in consideration of the reward, or- of a promise to pay a reward. A tender or offer to pay money, to have significance, must be of money, a promise to pay, which otherwise appears to form the consideration.

It is argued that according to the averments of the complaint, the trust and confidence of the plaintiff in the defendant is a sufficient consideration. In cases where trust and confidence it is said have been sufficient consideration, property has been entrusted to the promisor, on an express or implied promise to do something with or concerning the property. It appears in this case that the plaintiff not only did not part with property, but did not omit to do anything which, but for the defendant’s promise, he might have done for his own benefit.

It is further urged that it was the legal duty of the defendant to deliver the message, if a proper compensation were offered. Primarily, a failure to do that duty would give an action in tort and not in contract. But if an implied contract to do the duty arises from the circumstance, and which may be stated in the complaint as if it had been specifically made, then the complaint should state the defendant’s legal obligation in respect of the thing promised to be done by the alleged contract. In the present case, the contract is not to deliver at defendant’s office, but beyond its line of wire or its office, to another place in the city, and by means not in the nature of a telegraphic communication. The complaint does not aver that it was the legal duty of the defendant, either in general, or do the plaintiff particularly, to do this.

As the defendant’s alleged promise is not in respect of any alleged legal duty, and is not supported by any consideration, the judgment is affirmed, with costs.  