Western Union Telegraph Co. v. Young

— This action was brought by the appellee to recover the statutory penalty for the failure of the appellant to transmit and deliver a message.

It is said that the complaint is bad because it does not aver that the penalty is unpaid, but we deem this position untenable. The purpose of such an allegation in an action on a contract is to show a breach by non-payment, but in actions on torts or for penalties there is no necessity for showing a failure to pay the damages or the penalty.

Complaint is made of the ruling on demurrer to the third paragraph of the answer. The general theory of this…