Opinion
March Term, 1865
Henry W. Rogers, for the respondents.
The package of money was stolen while in the custody of a person named Fisher, at his lodgings in Menasha. The evening before the theft, the plaintiffs' clerk went to the defendant's office to deliver it to be carried to New York, but found the office closed. He made search elsewhere for the agent of the defendants, but not finding him, met Fisher in the street, and upon Fisher answering that he could receipt it, they went into an eating saloon where a receipt was executed, and the package given into the custody of Fisher. Fisher took it to his boarding house, and in the morning it was found that it had been abstracted from his coat pocket. There was no pretense that it ever reached the office of the company at Menasha, or came into the hands of its agent at that place, or any other agent, unless Fisher is to be deemed one.
The action proceeded upon the theory that there had been a delivery of the package to the defendants in their capacity of common carriers, and that, as such carriers, the risk had commenced, and they were consequently liable for the loss. As there must be an actual delivery to the carrier, or to some person authorized to act in his behalf, before his responsibility as such commences, of course it was incumbent upon the plaintiffs to show a delivery of the package to the defendants, or to some one authorized to receive it on their behalf, before they could be charged with the loss. This the court below deemed that the plaintiffs failed to show, and nonsuited them. The question is, was this error? I think it was not.
The defendants were an association engaged in the business of carrying packages of freight and money on lines or routes established by themselves. They had established an office at Menasha for the receipt of packages to be carried, and appointed an agent to take the sole charge of their business and affairs at that place. A delivery of a package at this office, even to a person placed temporarily in charge thereof by such agent, would have been a good delivery to the defendants; and so, perhaps, a delivery to their agent at any place in Menasha, outside of such office. Had the agent received and receipted, in the name of his principals, the package of money at the banking house of the plaintiffs, it would have been deemed a complete delivery to the defendants, to charge them as carriers, with the custody of it. But in this case there was neither a delivery at the office, nor to any agent of the company elsewhere. The office being closed and not finding the agent, the package was given to Fisher in an eating saloon. Fisher was not the agent or servant of the company, nor did he profess to be. He had been temporarily employed by Potter, the agent, as his clerk; and the plaintiffs knew that he was not the defendant's agent, but a clerk of such agent. The receipt which he gave for the package notified them of the fact; and they also had notice of it on delivering another package of money at the office for transportation the same day. In both instances the receipts were signed by Fisher, as Potter's clerk. Potter had no power to make Fisher, in any sense, the agent of the defendants; nor did he attempt it. He could not appoint a sub-agent without express authority from his principal, or the nature of the business required it. This was not such a case, and it affirmatively appeared that no sub-agent was needed. Nor was it shown, or attempted to be shown, that the express company ever had any notice or knowledge even of the existence of Fisher, much less that they knew or recognized him as acting as their servant or agent. But the plaintiffs knew that the company had an office at Menasha where their business was transacted; that such business was under the exclusive control of Potter; and that Potter, and not Fisher, was the person authorized to receive and receipt packages for transportation. Under these circumstances, the delivery of the package in question to Fisher outside of the company's office, was not a delivery to the company, so that its liability as a carrier attached. The substance of the transaction was to make Fisher the plaintiff's agent to deliver the package at the established office of the company, or to Potter, who was authorized to receive it on its account.
Without regard, therefore, to the contract between the parties for the carriage of money packages, which was in force at the time, and considering it to have no application to the particular case, I am of the opinion that the nonsuit was properly granted, and that the judgment of the Supreme Court ought to be affirmed.
Judgment affirmed.