May v. Western Union Telegraph Co., 112 Mass. 90

May v. Western Union Telegraph Co.

112 Mass. 90 | Mass. | 1873

Eítdicott, J.

The plaintiffs have properly joined a count in contract with two counts in tort, alleging them to be for one and the same cause of action. It is therefore an action sounding in contract or tort, upon which a general verdict may be taken, unless the plaintiffs are, in the discretion of the court, compelled to elect upon which they will proceed. Carlton v. Pierce, 1 Allen, 26. Sullivan v. Fitzgerald, 12 Allen, 482. Hulett v. Pixley, 97 Mass. 29.

The first count alleges that by the negligent management of its telegraph the defendant delivered to the plaintiffs a message from their partners in San Francisco which was never sent, whereby the plaintiffs suffered damage.

The second count alleges that the defendant, in consideration that the plaintiffs would send certain goods to their partners in San Francisco in behalf of the partnership, promised the plaintiffs that it was authorized by their partners in San Francisco to send a message ordering the goods, and in pursuance thereof they sent the goods to their partners in behalf of the partnership; yet the defendant was not so authorized, and by the breach of such promise the plaintiffs were damaged.

The third count alleges that the defendant falsely represented that it was authorized to deliver the message, and caused the plaintiff to send the goods and suffer damage. The principal cause of demurrer argued by the defendant is the non-joinder of Marsh & Pilsbury, alleged by the plaintiffs in all the counts to be their partners in San Francisco, to whom the goods were sent.

The demurrer to the first and third counts must be overruled. It is well settled that one of two persons jointly injured may maintain an action of tort for the injury, unless the non-joinder is pleaded in abatement, and that the non-joinder cannot be properly before the court to defeat the plaintiffs’ action by demurrer. Thompson v. Hoskins, 11 Mass. 419. Putney v. Lapham, 10 Cush. 232. Phillips v. Cummings, 11 Cush. 469. 1 Chit. Pl. (14th Am. ed.) 66.

But to the second count in contract the demurrer is well taken. It does not distinctly and clearly allege any contract with the plaintiffs separately from Marsh & Pilsbury, their partners in San *94Francisco, for although it is stated that the defendant promised the plaintiffs that it was authorized to send the message, it is also alleged that the consideration was that the plaintiffs should send the goods in behalf of the partnership, and that they did so send them. Whatever was done by the plaintiffs and defendant under said alleged contract was done in behalf of the partnership, of which Marsh & Pilsbury of San Francisco were members. It is also clear from the allegations in this count, that any contract arising from the legal obligation of the defendant, by reason of receiving the message, was with the partnership including Marsh & Pilsbury as well as the plaintiffs. A statement by a person that he is authorized to do a certain act cannot be said to be a promise, and does not constitute a contract; and it does not change the character of the act to call it a promise. It is merely a representation; there may be an action for the false representation, but not for a breach of the representation, as for a breach of a contract.

It was argued by the plaintiffs that as the demurrer is to the whole declaration, if one count is good the whole demurrer should be overruled, even though the others are defective. The demurrer, though inartiffcially drawn in this particular and confused and argumentative in form, not distinguishing in its recitals the non-joinder as a cause of demurrer to the different counts in terms, nevertheless does state in the outset, that it applies to the declaration and the several counts therein, contained; and further on states other causes of demurrer to the first and third counts “ in addition to the foregoing.” The demurrer, therefore, does substantially raise the question of non-joinder upon the counts specifically, and the case is to be distinguished from Sears v. Trowbridge, 15 Gray, 184, where the demurrer was only to the whole declaration. See Brown v. Castles, 11 Cush. 348.

Other causes of demurrer are assigned to the first and third counts, none of which we consider tenable.

In an action against a telegraph company for delivering a message never sent, and alleging that the defendant falsely represented that it was authorized to deliver such a message, and thereby caused the plaintiff to send goods and suffer damage, it is not necessary to allege that it was done with intent to deceive, *95or that it was false within the knowledge of the defendant. It is not an action for deceit. It is an action in the nature of a false warranty against one acting as agent, who represents that he has authority when he has not. Whether such representation is made in terms, or tacitly and impliedly, he supposing but not knowing the fact to be true, he is liable to the person misled. Jefts v. York, 10 Cush. 392. Bartlett v. Tucker, 104 Mass. 336, and cases cited. Nor in such an action for false representations is it necessary for the plaintiffs to allege that they used due care and diligence to ascertain if the representations were true. Nor do any presumptions arise in this case from the subject matter of the alleged false representations that make such an allegation necessary. The case does not fall within the principle laid down in Silver v. Brazier, 3 Allen, 382, cited by the defendant. The demurrer is argumentative on this point, and presents some considerations proper to be urged at the trial upon the question whether the plaintiffs were or might have been misled by the representations, but they are not to be considered in this stage of the cause. This remark applies also to the objection that Marsh & Pilsbury had no right to refuse to receive the tubes sent to them, and therefore the plaintiffs received no damage by their refusal, and consequently cannot maintain this action.

Whether they had the right to refuse depends upon the relation of the parties in regard to this particular transaction, and bears on the question to what extent the plaintiffs were damaged by the acts of the defendant. These are matters of fact to be settled by evidence, and a declaration is not and should not be required to set them forth in detail and at such length that they can be determined on demurrer.

We think also that it is alleged in the first count, that by reason of the defendant’s negligence, and in the third that by reason of its false representations, the second message received by the plaintiffs caused them to be misled and subjected them to damage. The extent of the damages is matter of proof.

Other causes of demurrer were assigned, but not being argued, we suppose them to have been waived.

Demurrer to second count sustained, to first and third over* ruled.