
    BALDWIN against THE UNITED STATES TELEGRAPH COMPANY.
    
      Supreme Court, Fourth District ; General Term,
    November, 1867.
    Demurrer to Answer.—Liability of Telegraph Companies.—Connecting Lines.—Pleading Negligence.
    Under a statute requiring connecting telegraph companies to receive and forward messages, transmitted for the purpose upon each other’s lines, a company receiving a message to be forwarded, in part, over such a connecting line, is to be regarded as authorized to make the contract respecting its transmission for such other line; and the receipt by it of an entire price is a sufficient consideration for the express or implied obligation resulting against such connecting company.
    If the complaint in an action to recover damages from a telegraph company alleges that plaintiff’s message was forwarded by a connecting company to the defendants, but was never sent by them to its destination,—an answer alleging that by the contract they were not responsible for “ delays, errors or remissness,’’ is no defense. These exceptions imply an imperfect performance, and do not exonerate from liability for entire failure to send.
    The contract to transmit a message, which is made with the sender by the company that receives the message, and within their apparent authorit)r, under such a statute, is binding on the connecting company; and exceptions in an agreement between the two companies, unknown to .the sender of the message, are not available as against him.
    Bach statement, in an answer, of matter relied on as a separate defense, must be complete in itself. It cannot be sustained on demurrer by resorting to allegations contained only in other defenses.
    An answer to a complaint for neglect to transmit a telegraphic dispatch, is not sufficient if it merely alleges that the injury plaintiff complains of resulted from his own negligence in not having the message repeated, or sending another, without stating facts upon which the court can predicate negligence as matter of law.
    Demurrer to answer.
    This action was brought by Charles I. and Francis B. Baldwin against The United States Telegraph Company.
    The defendants are a corporation, duly incorporated under the act of April 13, 1848, and the act of June 39, 1853, and the various acts amending the same, whose general business is to receive and transmit messages over certain lines of wire through the State of Hew York, and other States. One of their lines extends from Syracuse, H. Y., to Rouseville, in the State of Pennsylvania ; another corporation, incorporated under the. same act, and who transact the same kind of business, had a like telegraph line extending from Ogdensburgh to Syracuse, Hew York, and was called “The United States Branch Telegraph Company.”
    In Hovember, 1864, the plaintiffs, as they allege, being the owners of.certain interests in oil lands inYenango County, near Rouseville, Pennsylvania, which the plaintiffs were about to sell, but of the value of which they were ignorant,—in order to learn such value, one of the plaintiffs delivered at the office of the United States Branch Telegraph Company at Ogdensburgh, a message in writing, to be sent to one Eric Darling, their agent at Rouseville, which was in the following words and figures:
    “ Ogdensburgh, November 16, 1864. To Eric Darling, Rouseville, Venango County, Penn., at Williams’ Boarding House. Telegraph me at Rochester, what that well is doing. F. B. Baldwin.”
    Baldwin paid to the operator of said telegraph company, at the time, about two dollars, to obtain the transmission of such message; and on the following day Baldwin went to Rochester to receive the reply to the message, and to sell their interests, according to the information he should receive in reply. He remained in Rochester nearly a week, and received no reply; and then sold his said oil interest for $3,800.
    Immediately after making such sale he received a message from said Eric Darling, dated at Rouseville, and which had been transmitted to Ogdensburgh, and thence repeated to him at Rochester, in the following words and figures, viz :
    “Rouseville, November 25, 1864. To F. B. Baldwin. Well flowing 80 barrels. New well pumping twenty-five (25) bbls. Can sell your interest for five thousand (5,000) dollars. Telegraph me, refusal for ten days. Have Perry transfer to me. E. R. Dabling.”
    The plaintiffs then allege that their message was correctly transmitted to the defendants at Syracuse, on the day of its date ; that it was then put upon defendants’ lines, and was never transmitted by defendants to said Eric Darling, who at the time, and long afterwards, was at Williams’ boarding house, Rouseville; that the plaintiffs’ interests were, at that time, and for weeks after-wards, over the value of $5,000 and upwards ; that had the message been transmitted and delivered as directed, the intelligence they afterwards received from- said Darling would have been directly transmitted to said F. B. Baldwin at Rochester, and would have prevented a loss of $1,200 ; and that they did actually sustain a loss to that amount, by reason (tliat the defendants failed to transmit such message.
    
      The defendants set up various defenses, the sixth, seventh and eighth divisions of which, only, come in question. The sixth answer set up that the plaintiffs’ message was written upon a certain printed blank, in the words following:
    “ United States Branch Telegraph Company. Terms and conditions on which messages are received by this line for transmission.
    “ This company will endeavor, by good faith and due diligence, to merit the confidence of the public. It will not be responsible for delays, errors and remissnesses on the part of connecting lines, and only guarantees entire correctness when messages are repeated back from the place to which they are sent; for which repetition a small e-xtra charge will be made.
    “(Signed) Joseph Owen, General Superintendent.”
    And the defendants allege that such writing by the said F.. B. Baldwin, on said blank paper, and the acceptance thereof by the said United States Branch Telegraph Company, constituted the contract by which said last - mentioned company undertook to send the said message to Rouseville; and that the said message was not repeated, nor requested by the plaintiffs to be repeated.
    The seventh answer set up for a separate defense that at the time of the delivery of the said message to the said United States Branch Telegraph Company, and at all times thereafter, the defendants had established certain rules, regulations and conditions, upon compliance with which it would and did accept and undertake to transmit and deliver correctly telegraph messages, and without compliance with which it would not, and did not, so undertake. That such rules, regulations, and conditions were printed by it upon the blanks used by senders of messages for writing thereon their said messages ; and that said rules, regulations and conditions were publicly known, and were well known to the said United States Branch Telegraph Company, and their officers and servants, and were in the words following :
    
      “Ill order to guard against error or delay in the transmission or delivery of messages, every message of importance ought to "be repeated, and sent "back from the station to which it is directed to the station from which it is sent, and compared with the original message. Half the tariff price will "be charged for thus repeating and comparing. *"
    “ And it is hereby agreed between the signer or signers of this message and this company, that this company shall not be held responsible for errors or delays in the transmission of this message, if repeated, beyond the amount of fifty dollars, unless a special agreement for insurance be made, and paid for, at the time of sending the message, and the amount of risk specified in this agreement; and that in case this message is not repeated this company shall not be held responsible for any error or delay in the transmission or delivery of the same, beyond the amount paid for transmission, unless specially insured, and the amount of risk paid for and specified on this agreement at the time; nor shall this company be held liable for errors in cyphers or obscure messages, nor for any errors or neglect by any other company over whose lines this message may be sent to reach its destination ; and this company is hereby made the agent of the signer of this message, to forward it over the lines of other companies when necessary.
    “No agent or employee is authorized or allowed to vary the terms of this agreement, or make any other verbal agreement; and no one but the superintendent is authorized to make a special agreement for insurance.
    “This agreement shall apply through the whole course of this message, on all lines by which it may be transmitted.”
    And the defendants say that the said message was received by them to be transmitted for the said United States Branch Telegraph Company, upon the understanding and agreement that the defendants were not to be liable for any error or delay in the transmission or delivery of said message, or liable in any way in respect to said- message on account of receiving the same, unless the said United States Branch Telegraph Co. requested and paid to have the same repeated ; that it did not request to have the same repeated, nor was it repeated in the manner provided for in said rules, regulations and conditions, nor in any way ; and that said message was transmitted "by the defendants from Syracuse correctly in all respects, "but that the same was understood "by the operator of defendants at' Rouseville to be addressed to B. It. Oooley, instead of Brio Darling; and that the same was correctly written out in all respects, except as to said name, and was left at Williams’ boarding house at Rouseville. And defendants aver that the business of transmitting telegraphic messages is such that it is impossible to transmit messages correctly, with certainty, unless the same be repeated in the manner referred to, and described in the rules and regulations of the defendants above set forth, and in the printed blank referred to in the sixth clause hereof; that the error in said name was not caused by any negligence or design on the part of the defendants, or in any of their servants or agents, and that the same could have been corrected or prevented only' by having said message repeated in the manner above referred to.
    The eighth answer set up as a further and separate defense, that it was the duty of the plaintiffs, in the exercise of ordinary prudence in the transaction of business, to procure the dispatch first set forth in the complaint to be repeated ; or to make inquiries whether it had reached its destination, or to send a new dispatch to their agent, or to use other means for securing the information which they sought in regard to their alleged interests, before completing the alleged sale thereof to said Thompson; that they had ample opportunity, time and means to do all and each of those things, before completing said sale, and after the alleged sending of their first dispatch ; and that by doing so they could have prevented the alleged damage ; that the plaintiff did not have the said dispatch repeated, nor inquire whether it had reached its destination, nor send a new dispatch to their agent, nor use any other means, nor take any other precautions for procuring information respecting them alleged interests, after sending their first dispatch, and "before completing said sale ; and that in all and each of these respects «they were guilty of negligence, and that said negligence on their part was the cause of the damage which, as they allege, they have sustained.
    To the said sixth, seventh and eighth answers the plaintiffs severally demurred that they did not state facts sufficient to constitute a defense.
    This presented the question to be decided. The court at special term held the sixth and seventh answers sufficient, and the eighth insufficient; from which both parties appealed — each from so much of the decision as was adverse to themselves.
    
      Foote & James, for the plaintiffs.
    
      George W. Soren, for the defendants as respondents.
    I. We have here to do only with the sixth and seventh defenses. If we are liable to the plaintiffs at all, it is either because 1. The branch company were our agents to contract with the plaintiffs ; or,-2. The branch company were the plaintiffs’ agents, and we contracted with them through it. 3. Hot resting our obligation, primarily, upon an agency in either way, because the facts pleaded make us prima facie liable upon some other legal ground to the plaintiffs, especially by. virtue of the statute of 1848, ch. 265, § 11, or as being common carriers, we deny that the complaint makes out an obligation on our part, on either of these grounds (see points "sixth to eleventh). But on the supposition that it does, our sixth and seventh defenses are well pleaded, upon either theory. First. Even if the branch company were, as plaintiffs insisted below, our agents. The allegations of the seventh paragraph of the answer show that the branch company received the plaintiffs’ message, upon the condition that they would not guarantee entire correctness unless the message was repeated, and that it was not repeated, nor did the plaintiffs request to have it repeated. Payment for repetition would have been a request, and a denial of payment is a denial of a request. As it appears that the message was transmitted correctly in all points but one, to wit: that the name of Cooley was substituted for that of Darling, it is obvious that as near an approach was made to entire correctness as could be made, without actually reaching it. The defendants are, therefore, not liable to an action, even if the branch company are regarded as their agents. 1. The condition requiring the repetition of messages was a reasonable one, to which full effect must be given (Camp v. Western Union Telegraph Company, 1 Metc. [Ky.], 164; Breese v. United States Telegraph Co., 45 Barb., 274 ; McAndrew v. Telegraph Co., 17 Com. B., 3 ; Potts v. Telegraph Co., 18 Law Hep., 477; De Rutte v. New York, &c. Telegraph Co., 30 How. Pr., 403 ; 1 Daly, 547). 2. This stipulation was not a mere notice, but was a contract between the branch company and the plaintiffs, who signed the paper containing it (Lewis v. Great Western R. R. Co., 5 H. & N., 867 ; Breese v. United States Telegraph Co., 45 Barb., 274). On the English rule as to carriers, see Walker v. York, &c. Railway (2 Ellis & B., 750); Mc-Manus v. Lancashire, &c; Railway (4 H. & N., 349) ; Peek v. North Staff. Railway {Ellis, B. & E., 958; affirmed 10 H. of L. Cas., 473). It was, therefore, not necessary that the paper signed by the plaintiffs should have contained a positive stipulation on their part to exonerate the telegraph courpany. The acceptance of a ticket from a railroad company amounts to an assent to its conditions (Bissell v. New York Central R. R. Co., 25 N. Y., 442). 3. Even if the branch company were, as the plaintiffs claim, agents for the defendants, the defendants are entitled to the benefit of this stipulation (Bristol, &c. Railway v. Collins, 7 H. of L. Cas., 194 ; 11 Exch., 790). 4. The plaintiffs were bound to know the authority of the branch company if they were our agents. The conditions upon which they were authorized in that case to receive messages for us, and upon which we undertook to transmit and deliver messages so received "by them, would "be those set forth in our seventh defense.
    
      Second. Regarding the "branch company as the plaintiffs’ agents. The allegations of the seventh paragraph of the answer are a complete defense to the action. 1. The plaintiffs were "bound "by the agreement. If the "branch company were not the principals and employees of the defendants, as we contend, the only other reasonable conclusion is, that they were employed by the plaintiffs as agents to contract with the defendants. For there is in the complaint a plain allegation that the branch company were employed by the plaintiffs, while there was not a word to show that they were employed by the defendants. It follows that the acts and knowledge of the branch company are binding upon the plaintiffs (Farmers’ & Mechanics’ Bank v. Butchers’ & Drovers’ Bank, 16 N. Y., 125, 149 ; Rourke v. Story, 4 E. D. Smith, 54). 2. The allegation that the error was not caused by any negligence or design of the defendants, &c., is a complete bar to the action. The whole foundation of the action is the supposed negligence of the defendants. This needs no argument. There is not a single decision holding telegraph companies to be insurers. It is universally admitted that they are only bound to use reasonable care and diligence. This answer sets up that the defendants did this, and more; that they were guilty of no negligence, not even the slightest. This averment is in proper form. Negligence is a question of fact (Perkins v. New York Central R. R. Co., 24 N. Y, 196, 207; Buckingham v. Payne, 36 Barb., 81 ; Bernhardt v. Saratoga R. R. Co., 32 Id., 165, 169; Tobin v. Murison, 5 Moore P. C., 110; Poler v. New York Central R. R. Co., 16 N. Y., 476, 480; Nolton v. Western R. R. Co., 15 Id., 444, 450). No better rules can be applied to determine what are facts in pleading, than those which are applied to special verdicts and findings of fact "by referees. A pleading which alleges the facts in precisely the form in which the referee ought to find them in his report, would be perfect. In an action for negligence, it is held that the referee must expressly find 11 negligence” as a fact, and it is-not enough for him to find facts which prima facie constitute negligence (Buckingham v. Payne, 36 Barb., 81). But if negligence is deemed to be a question of mixed law and fact, yet such mixed allegations are allowed in pleading (Cady v. Allen, 22 Barb., 395). An averment that one “converted” property, which is unquestionably a mixed statement of law and fact, is good pleading (Decker v. Matthews, 12 N. Y. [2 Kern.}, 313, 321, 324). So is the similar allegation that one is “owner” of property (Walker v. Lockwood, 23 Barb., 233 ; Ensign v. Sherman, 14 How. Pr., 439 ; Davis v. Hoppock, 6 Duer, 256 ; Sanders v. Cary, 16 How. Fr., 308). Even where such allegations are improperly used in pleading, the only remedy is by motion to make more definite and certain. On demurrer, they are unexceptionable (Prindle v. Caruthers, 15 N. Y., 425, 431; People v. Ryder, 12 Id. [2 Kern.], 433). 3. The facts set forth in detail show that the defendants were not guilty of negligence. The mistake by the operator is not negligence. The court is at liberty to take judicial notice of the nature of the telegraphic process, it being matter of public science. Such notice has been repeatedly taken, particularly in Breese v. Mumford (45 Barb., 274). It is well known that written telegraphic language is phonographic. Any momentary disturbance of the electric current may change a letter or word, and neither the sending or receiving operator be aware of the difference ; and there is nothing in this misapprehension of a wrord which at all implies negligence. It is expressly averred that the message was sent correctly. Ho human wisdom or skill can secure its arrival in correct form. In McAndrew v. Electric Telegraph Co. (17 Com. B., 3), it was held that the substitution of “Southampton” for “Hull” was not negligent.
    
      
      Third. Even if the facts set up in the complaint prima facie fixed upon the defendants a liability to the plaintiffs, either under Laws of 1848, ch. 265, § 11, or as being common carriers, the sixth and seventh defenses, or certainly the seventh, are good.
    I. As to the statute. Plaintiffs fail to allege any delivery of their message to the defendants or payment to them. The statute does not take from companies the right to protect themselves by reasonable rules and conditions. Its primary design was to compel connecting companies to do the business of each other. Compare a similar law affecting railways, cited in Cary v. Cleveland, &c. R. R. Co. (29 Barb., 57). The intermediate telegraph company alone have the right of action (Thurn v. Alta California Telegraph Company, 15 Cal., 472 ; Cary v. Cleveland, &c. R. R. Co., 29 Barb., 57).
    II. That telegraph companies are not common carriers, or what is more material, are not to be subjected to the rules imposed by the common law on common carriers of goods, has been repeatedly decided (Breese v. United States Telegraph Company, 45 Barb., 294). But if they were, the sixth and seventh defenses would be well pleaded. Common carriers may limit their ordinary liability by reasonable conditions, and the two defenses here set up are well pleaded against the plaintiffs.
    II. For the defendants as appellants.—Fourth. The eighth defense, which charges the plaintiffs with having brought the injury suffered by them upon themselves by their own negligence, is valid. 1. The action cannot be sustained upon contract, for no contract between the plaintiffs and the defendants is alleged, and none existed. It is brought purely upon the ground of negligence, or the failure to perform a duty imposed by law ; and plaintiffs cannot recover if their own negligence has contributed to the injury of which they complain (Johnson v. Hudson River R. R. Co., 20 N. Y., 69 ; Wilds v. Same, 24 Id., 430). 2. The action must depend entirely upon the special damage averred ; and this loss we show was caused by their own negligence. 3. The facts alleged establish such negligence. It was obviously the duty of the plaintiffs, as men of business, to wait a reasonable time for an answer to their message. Failing to receive it, they should have inquired about it; non con-stat but that the branch company and the defendants would have telegraphed inquiries without charges. They were never asked to do so. . We show that the plaintiffs did nothing to avoid loss, but, on the contrary, having sent a message which demanded a prompt answer, and the failure of an answer to which ought to have put them on inquiry, they shut their eyes and sold their property. For losses thus caused, the defendants are not in any case responsible.
    
      Fifth. Defendants were entitled to judgment upon the demurrer, for the complaint was bad. The defendants have a right to avail themselves, at this stage, of any defect in the complaint, which would have made it bad upon demurrer (Ayres v. Covill, 18 Barb., 360; Schwab v. Furniss, 4 Sandf., 704; Stoddart v. Onondaga Conference, 12 Barb., 573).
    
    
      Sixth. The complaint nowhere alleges that the defendants ever received, or are to receive, any consideration. 1. The complaint does not allege a misfeasance, but a simple nonfeasance. An averment of consideration was- therefore indispensable (Dolcher v. Fry, 37 Barb., 153 ; Spear v. Downing, 34 Id., 522 ; 12 Abb. Pr., 437; Bailey v. Freeman, 4 Johns., 280 ; Burnet v. Bisco, 4 Id., 335 ; Prindle v. Caruthers, 15 N. Y., 430 ; Seaman v. Seaman, 12 Wend., 381 ; Parker v. Crane, 6 Id., 647). 3. The plaintiffs claim that a misfeasance is proved by the fact that the operator at Rouseville read the address as ‘‘Cooley” instead of “ Darling.” But the address is not part of the message. An error in the address evidently prevents the delivery of the message at all. It does not mislead any one, and is as pure a case of nonfeasance as though the message never left the office. This fact does not appear in the complaint, nor in the eighth defense, which alone can be taken into consideration on this issue (Ayres v. Covill, 18 Barb., 260).
    
      Seventh. The complaint is bad, for the further reason that all the contract or legal obligations raised by the facts therein stated, are between the plaintiffs and the branch company. The plaintiffs had no dealings with the defendants, and it is nowhere averred that the branch company were agents for the defendants. All the presumptions are the other way. 1. It is abundantly settled in carriers’ cases similar to this (taking the complaint alone, without reference to the answer), that the plaintiffs must sue the first carrier (the branch company) for damage caused by the negligence of any connecting carrier (Quimby v. Vanderbilt, 17 N. Y., 306 ; Williams v. Vanderbilt, 28 Id., 217; Wilcox v. Parmelee, 3 Sandf., 610 ; De Rutte v. New York, &c. Telegraph Co., 30 How. Pr., 403; 1 Daly, 547; Moore v. Evans, 14 Barb., 524; Fox v. Troy & Boston R. R. Co., 24 Id., 382; Muschamp v. Lancaster, &c. R. R. Co., 8 Mees. & W., 421; Scothorn v. South Staffordshire Railway, 8 Exch., 341). This rule was not denied in Van Santvoord v. St. John (6 Hill, 157). All that was decided in that case was that a contrary usage might be pleaded and proved. 3. As we shall presently show, a third person cannot sue an agent for his neglect in the service of his principal. Far less can he sue the agent for the neglect of the principal himself. It is therefore clear that the only ground upon which the decisions last cited can be maintained is, that the first carrier is the principal, and the subsequent carriers are his agents. 4. For aught that appears in the complaint, there may be a dozen competing lines from Syracuse to Rouseville; and, in point of fact, there are two or more. For which of these were the branch company agents % They could not be agents for both of them, as their duties would have been conflicting. We are not left to mere inference upon this question. It has been expressly adjudged that subsequent carriers are the agents of the first who receives the the goods or message from the sender (Machu v. London, &c. Railway, 2 Exch., 415; Scothorn v. South Stafford-shire Railway, 8 Id., 341, 345 ; De Rutte v. New York Telegraph Co., 1 Daly, 547 ; 30 How. Pr., 403 ; see also Thurn v. Alta California, &c. Telegraph Co., 15 Cal., 472). 5. An agent is not responsible to third persons for his failure to perform his duty to his principal, even where such persons are directly injured by his negligence. They have their remedy against the principal, and against him only (Montgomery Bank v. Albany Bank, 7 N. Y. [3 Seld.], 459, 464 ; Colvin v. Holbrook, 2 Id. [2 Comst.] 126 ; Denny Manhattan Co., 2 Den., 118; 5 Id., 639). 6. It follows that the plaintiffs have no right to sue the defendants for the negligence set forth in the complaint. Their only remedy is by action against the branch company (Bristol, &c. v. Collins, 7 H. of L. Cas., 194; 11 Exch., 790; Coxon v. Great Western Railway, 5 Hurl. & N., 274; Mytton v. Midland Railway, 4 Id., 615; Thurn v. Alta California Telegraph Co., 15 Cal, 472).
    
      Eighth. Even if we admit that the facts set forth in the complaint tended to prove that the branch company were the defendants’ agents, yet it is bad as omitting to allege the fact of agency, instead of evidence of the fact. A complaint which instead of stating a material fact, sets forth mere evidence of the fact, is bad on demurrer. "For the evidence may all be true and yet the fact not exist (Page v. Boyd, 11 How. Pr., 417 ; Buzzard v. Knapp, 12 Id., 506 ; see also Emery v. Pease, 20 N. Y., 62).
    
      Ninth. The ojfinion which has sometimes been entertained that a second carrier was liable to the sender of the goods, is founded upon an assumption that the "first carrier acts as an agent of the sender in employing the second one. Conceding this, the complaint is nevertheless bad. 1. It does not state the fact of this agency as it ought to do (see eighth point). 2. It does not allege that the plaintiffs’ agent paid or agreed to pay anything to the defendants. As it only alleges a simple nonfeasance, this is a vital defect (see sixth point, and authorities cited). 3. It does not even allege that the branch company gave the message to the defendants. It only says that the message was “ put upon the lines of the defendants,” without saying by whom.
    
    
      Tenth. The complaint does not state facts sufficient to charge the defendants with liability to any one as common carriers. All that is stated on that point is that the company were organized under the general statute, and were engaged in the business of receiving and transmitting messages upon their wires. 1. It is not alleged that they did so for the public at large, nor for hire. Both these facts are essential to constitute a common carrier. Moreover, the statutory liability of telegraph companies is contingent upon the sender’s compliance with their rules and regulations, and payment of their usual charges, which is not alleged in the complaint (2 Pev. Stat., 5 ed., 740, § 11). If the nature of the business necessarily constitutes each company the agents for others, there would be no need for legislative interference to declare the obligation (see Story on Bailm., § 495 ; 2 Pars, on Contr., 163 ; Sweet v. Barney, 23 N. Y., 335; Moore v. Evans, 14 Barb., 524 ; Bank of Orange v. Brown, 3 Wend., 158). 2. It does not follow, simply because a corporation erects and maintains a telegraph, that they do so for the public benefit. 3. The absence of any allegation that defendants carried messages for hire, or received or demanded hire, is fatal to the claim that it is liable as a common carrier, for mere nonfeasance.
    
    
      Eleventh. In every aspect, then, the complaint is bad.
    
      Twelfth. We claim the benefit of these objections to the complaint upon all the demurrers, and ask that it be dismissed. This is the proper judgment (Schwab v. Furniss, 4 Sandf., 704).
    
      Thirteenth. Leonard v. New York, &c. Telegraph Co.. (MS.), turned entirely upon the question whether the plaintiffs were the proper parties to sue. De Rutte v. New York Telegraph Co. (1 Daly, 547 ; 30 How. Pr., 403). Stevenson v. Montreal Telegraph Co. (16 Upper Canada, 530), so far as it contains anything favorable to the plaintiffs’ case, was decided in reliance upon the decision in Collins v. Bristol, &c. Railway, in the Exchequer Chamber (1 Hurl. v. N., 517), which has been since reversed in the House of Lords (7 H. of L. Cas., 191; 5 Hurl. & H., Phil, ed., 969).
   By the Court.Potter, J.

The questions to be decided here do not call for an adjudication upon the merits, or upon the rule of damages, if the plaintiffs’ pleading shall be sustained; but the questions are strictly such as shall test the pleadings we have specified in the statement of the case; and

First. As to the sixth answer of the defendants.

In testing this as a pleading, we may take into consideration that it is made the duty of the defendants by statute (Bess. Laws of 1855, ch. 559) to transmit the plaintiffs’ message, which they received from “ The United States Branch Telegraph Company,” and which was given to the latter company by the plaintiffs at Ogdensburgh, on November 16, 1864. Whether the injury complained of arose from that implied contract, which the law imposes upon every one who undertakes for another, or by virtue of the special contract which the defendants set up in the sixth answer, the defendants were in duty bound to send it, and in transmitting it were bound to exercise a degree of care and skill, and a reasonable dispatch in performing the duty or obligation they so undertook, and for which, by legal implication, they received from the plaintiffs all the consideration they demanded for the performance of such undertaking. This is to be implied from the undisputed facts that about the sum-of two dollars was paid by the plaintiffs at the time, in advance, to secure the undertaking, and that the defendants actually undertook its performance for some consideration, as is also to be implied- from the fact of receiving such message from their connecting line, the United States Branch Telegraph Company, and from the duty required by the statute. If, however, the undertaking of the defendants is put upon their alleged contract, set up in this sixth answer, it is found that it contains a pledge or promise, on their part, of good faith and due diligence in the performance of their duty. This answer sets up a defense that the agreement made by; the plaintiffs with the United States Branch Company was the contract between the parties. Then, so far as this answer is concerned, this agreement is the contract by which the defendants entered upon its performance. By this agreement the defendants exempt themselves from liability on account of delays, errors or remissness . on the part of connecting lines.

No act, however, or omission, or delay, error or remissness of any connecting line, is complained of by the plaintiffs. The complaint is against the defendants’ own line. This part of the contract, therefore, and the exemption seated, does not apply to their defense. The remaining part of this alleged contract is the ground of their defense, to wit: “ that they only guarantee entire correctness when messages are repeated back from the place to which they are sent; for which repetition a small charge will be made.”

Assuming that the duty imposed by statute demanded of the defendants that they transmit this message, and that they have received their .due share of the compensation paid by the plaintiffs for the performance of the duty, it follows, logically, that there is a promise on their part, implied, at least, from their duty to the plaintiffs, and from their receipt of the consideration, that they will perform it; and this promise, being made for the benefit of the plaintiffs, it enures to them to them to the same effect as a promise made directly to them, and they can maintain an action for its breach. Under the provisions of the statutes that it is the duty of connecting lines to receive and transmit messages received from other lines, connected with the fact that the defendants did receive the plaintiffs’ message, it is to be implied in law, and the courts may assume it to be true, that arrangements have been macle between the connecting lines, so that the compensation agreed upon and received at the office which receives the message, is the full compensation for all the lines over which it is sent; and that as between themselves the proportion of consideration received or to be received by each line is understood and regulated between themselves ; and this creates an undertaking or engagement on the part of each company with the sender of the message, that it shall be transmitted over their line, and delivered according to the contract made at the office at which the message was received ; and it is also implied in law that each separate line so connecting and acting in concert has constituted the other,—that is, the line which receives the message, —its agents for making contracts over the lines of both.

Assuming the truth of this sixth answer, what, then, is the contract between the parties which we are now considering ?

It was to send this message for a consideration then agreed upon between the parties, without a request to have the message repeated back, which repetition, if requested, would have called for a still larger compensation, and which larger compensation would have secured to the plaintiffs the guarantee of the defendants of the entire correctness.

The contract, then, was, that the defendants would not be liable for delay, error or remissness. These being the only particulars specified in their terms and conditions of the special contract, they cannot claim exemption or release from any which by their contract they were bound to perform, other than such as are expressly specified. They cannot, in law, receive the consideration and be bound in duty, and then neglect or refuse to perform the duty at all. The complaint charges, not any delay, error or remissness, but that the message was never transmitted at all by the defendants to Rouse-ville, nor delivered to the said Eric Darling, who, it is charged, was then, and for a long time afterwards, was at the place where the message was directed .by the plaintiffs. This is denied by the sixth answer, which for this purpose stands alone. An entire neglect and refusal to perform this contract, by the defendants, does not bring them within the excepted terms. “ Delay” in sending and delivering a message, implies that it was or would be sent at some time, but not sent or delivered promptly. “Error” in sending or delivering a message implies sending or delivering a wrong message, or to the wrong place or person. “Remissness” also implies a sending or delivering, but in a tardy, negligent or careless manner. It is neither delay, error nor remissness that is charged, but the entire omission or refusal to send or deliver the message, and this is admitted. It is true that it is stated in the complaint that the message was correctly transmitted to the defendants, and was then put upon their lines. The meaning of putting it upon their lines is not explained by either pleading, and whether or not it was sent on the wires we are not informed ; but as this expression is immediately followed by the positive allegation that it was never transmitted, we cannot assume that it was, or that these two allegations, unexplained, are in conflict, but they must be construed to be in harmony. Then, in legal view, it comes to this: the defendants were employed and paid to transmit a message for the plaintiffs. This undertaking it was the defendants’ duty to perform. They agreed to perform it; they failed to perform, and are guilty of a breach. I know of no reason why they are exempt from the same legal liabilities as would be of any other party, whether professional or mechanical, who offer to perform duties, and who undertake to perform, who receive a compensation for performance, and fail in the undertaking.

Whether damages are nominal, or actual and plenary, we are not called upon to-decide. The answer sets up no defense.

I think, therefore, the judge at special term erred in overruling the demurrer to the sixth answer. This answer sets up and claims the duty was performed under and by virtue of the special contract therein set forth, but does not show that the defendants performed according to that contract, but admits a failure.

The seventh answer sets up a different special agreement, under which the defendants. undertook the performance ; but they do not allege or claim that it was an agreement made between them and the plaintiffs, or that the plaintiffs had any knowledge or information of the terms, rules, regulations or conditions by which they were regulated in the transmission of messages, which they claim constituted the contract. If we are right in the position that the statute having imposed the duty upon connecting lines of transmitting messages for each other, and that the company receiving the message and the considóration, is the agent to make contracts with the other roads with which it is in connection, then the contract of the agent is the contract of the principal who undertakes the performance of the duty. The contract made by the agent, whether it arises from implication of law or by express special terms, is the contract which may be enforced if made within the legitimate business of the principal, or power of the agent. As between the agent and third parties, the apparent authority is the real authority. The private or other arrangement between the principal and their agent, not brought home to the party who contracts with the agent, does not affect the contract as to such party. What the contract was between the plaintiffs and the United States Telegraph Company, the defendants, is not set up in this seventh answer ; and the private agreement between the latter and the defendants, or the knowledge of the branch company in relation to the terms, regulations and conditions of the defendants in their transmission of messages, is a matter of no importance, and constitutes no defense to the charge against the defendants of breach of duty. In this view it is not necessary to discuss what would have been the rights of the parties had the plaintiffs sent the message from the defendants’ office, .written upon one of their blanks, containing their rules, condi tions and regulations as to their terms of transmitting messages.

But even if these rules, regulations arid conditions were in legal effect to be brought to the plaintiffs’ notice, there would still be a liability on the part of the defendants, as their conditions admit, to the amount of the consideration received by them for their agreement to transmit, and the breach of duty in this respect; and the answer would then admit a limited liability on the part of the defendants. I think, therefore, the special term was in error in overruling the demurrer to this seventh answer.

The eighth answer of the defendants sets up a want of the exercise of ordinary prudence on the part of the plaintiffs in respect to procuring the dispatch to be repeated, or to make inquiries whether it had reached its destination, or to send a new dispatch to their agent to ascertain whether the first had been received, or by other means to obtain the information they desired ; and that by reason of these neglects and omissions they were guilty of negligence, &c.

By the well settled rules of pleading, each answer must of itself be a complete answer to the whole complaint ; as perfectly so as if it stood alone. Unless, in terms, it adopts or refers to the matter contained in some other answer, it must be tested as a pleading alone by the matter itself contains.

Examining this answer by the rule we have stated, as an answer to the charge of the omission to transmit a message for which they have been paid, and which it was their duty to send, they do not even allege directly that they transmitted the message, or make any reference to terms, conditions or rules which were made to control the contract. The court cannot, as matter of law, adjudge that ordinary prudence required that the plaintiffs should have had the dispatch repeated ; or that they should do any act, or take any other precaution tb an that of making the dispatch, delivering it to the defenclants. or their agents, to be transmitted, and pay the charges demanded for the service.

The law, then, casts the burden upon the defendants of showing, by an answer, a performance, or a good legal excuse for the non-performance of their obligation. This answer is entirely deficient in setting up any defense except negligence, and this only in a manner which the couit cannot adjudge as a question of law. The special term, therefore, correctly sustained the demurrer of the plaintiffs to this eighth answer.

I do not take the ground that the defendants are common carriers, nor that they may not limit their liability by special contracts, nor even that writing the dispatch upon the printed blank kept by the telegraph company, may not bind the sender by the terms of the rules, regulations and conditions printed thereon, whether they were read by the sender of the message or not. But taking the rules, regulations and conditions set forth in the sixth answer to be the terms of the said branch company, to wit: that they only guarantee entire correctness when messages are repeated, and such repetition paid for, by an extra charge,—the agreement in question is not brought within those terms. The extra charge was not paid, and no request was made to have the message repeated, and of course no guarantee of entire correctness was made by the defendants, or by their agent.

The message, however, was delivered, and its transmission paid for. What, then, was the contract % Had • the plaintiffs required its repetition, it would have come within the terms of the guaranty, and the contract would be clear ; but the company do transmit messages without the guaranty, and for a consideration paid for so doing. What, then, are the liabilities of the party undertaking % Can they receive the consideration money, and refuse to send it % Can they send it part of the way, and refuse to send it further ? Does the party who pays for the transmission take upon himself all the risks whether or not the company will perform their duty and send it % Is this reasonable ? Is this law? I think not. There was an undertaking of some kind, in law, from the parties who received the message. If it did not come within the terms of the special agreement, then, it is left as if there was no special agreement; and the agreement is such as the law implies, and there is an admitted breach. True, the printed notice upon which the message was written informed the sender that, for a certain additional charge, he could obtain a guaranty, but the plaintiffs chose to have it transmitted without the guaranty, and, of course, his remedy is precisely such as it would have been had there been no printed notice. I do not notice, further, the special terms of the contract set up in the seventh answer, for the reason that I have held that there is no allegation that any contract was made by the defendants with the plaintiffs, and that enough was not shown to bring the plaintiffs within its terms.

I am of opinion, therefore, that neither of the answers numbered sixth, seventh or eighth do set forth facts sufficient to constitute defenses to the matters set up in the complaint.

There should be a reversal of the order at the special term as to the sixth and seventh answers, with costs of the appeal and costs below ; and the order of the special term as to the eighth answer should be affirmed with costs of tire appeal, with liberty to the defendants, on payment of costs, to answer over as to the said sixth, seventh and eighth answers..

Ordered accordingly. 
      
       Present, James, Rosekrans and Potter, JJ.
     