
    
      Wm. Lloyd v. Barden and Brooks.
    
    To charge a mandatary with an article lost, it is not necessary that, in every case, the delivery should have been to him individually, or to one expressly or specifically authorized to receive for him; but an agency to receive may be implied in the same manner as such agency may be implied in relation to articles which were to be carried for hire.
    
      Before the Recorder, in the City Court, at Charleston, February Term, 1848.
    This was an action on the case against the defendants, owners of the steamboat Metamora, for damages sustained by the plaintiff, from the negligence of the defendants, in the carriage of a package of bank bills, amounting to $336, which he alleged to have been delivered by him to the defendants, for carriage to and delivery at Savannah, and to have been lost to the plaintiff through their carelessness.— There were, beside the counts imputing negligence to the defendants, in regard to the safe keeping and carriage of the money, a count in trover for the package itself. The following testimony was introduced on the part of the plaintiff:
    
      Theodore Wilbur, sworn. — Said he was clerk to the plaintiff ; knows the defendant, Barden ; he is captain of the Met-amora ; the line used to carry packages of money for plaintiff, to Savannah ; the house of Lafitte & Co. were the consignees of the boats ; generally gave these packages to Lafitte, sometimes to the captain; this had been the course of business for some time. In June, 1.847, witness put up a package in brown paper, with three seals, the usual way in which money was put up; there was ,f336 in small bills, ones and twos; witness counted the money himself, and put it up. The boat was about leaving when witness got to the wharf; he handed the package to Mr. Laffiteau, who took it from witness and threw it to the captain ; witness saw the captain (Barden) pick it up; this was about 9 o’clock ; Laffiteau was the clerk of Lafitte &. Co.; both Lafitte and Laffiteau acknowledged the truth of this statement of witness. In two or three days, witness went to Lafitte for returns; Lafitte then said he had seen the captain pick it up; he said he supposed the captain had put it in his pocket.
    
      Cross-examined. — Witness is now a clerk to Mr. Mag-wood ; no freight was paid for carrying these packages; there was an understanding to that effect with plaintiff; the bills were ones and twos of the Georgia Banks ; plaintiff bought them at one and two per cent off; Lafitte had two clerks; he met one of them, don’t know which; Lafitte’s clerk said if witness was not quick the boat would be gone; witness told • Laffiteau, here is a package of money; the head of the boat was off; witness could have jumped on board at the stern of "'the boat; Laffiteau was standing near the centre of the boat, on the wharf, opposite the wheel house ; Laffiteau went towards the head of the boat a little; the boat Was then under way; the wheel house was of the common size; Laffiteau threw it to the captain, who was at the head of the boat, beyond the wheel house; spoke afterwards to captain Barden about it; captain Barden said if he had picked it up he must have put it in the letter bag; does not recollect that captain Barden denied having picked it up ; some of the ropes at the stern were not loosed at the time of delivery of the package.
    
      In reply. — The money was to go to Mr. Lafitte in Savannah, the brother of Mr. Lafitte in Charleston, (whose house were the agents of the boat;) no one was on the deck but captain Barden; saw the package distinctly picked up by the captain ; a memorandum was made by Witness, at the time, (which witness here produced ;) it is in his hand writing ; witness made it alone; there were several boats in the line; heard Laffiteau call out to the captain when he threw the package. This boat • was the Metamora, and witness knew that Barden was captain of the Metamora. ,
    Here'the plaintiff closed, and the defendants introduced the following testimony:
    
      Mr. 8. M. Laffiteau, sworn. — Is itt the employ of E. Lafitte & Co.; can’t say that he ever received packages from Mr. Lloyd ; witness had just left the boat; a young man handed him a package; the boat was under way; witness was standing near the wheel house, (a very large one ;) witness threw it on board, ahead of the wheel house; can’t see any thing beyond the wheel house ; witness followed up after throwing it; saw the captain come to the side of the boat; could not, from where he stood, see the captain pick it up; witness Was in advance of Lloyd’s clerk ; had to advance a few steps to throw it in front of the wheel house; the young.man did not tell witness there was money in the package ; if witness had known it had been money, he would not have thrown it on board ; the captain is particularly engaged when the boat is leaving the wharf; witness does not recollect being present when Lloyd’s clerk afterwards inquired about this package.
    
      Gross examined. — The house of Lafitte &. Co. are consignees of this line of boats, in Charleston and Savannah; don’t recollect of any packages having been sent by Lloyd; witness only takes charge of things which pay freight; witness will say that he did not hear the young man say there was money in it; cannot say whether he said throw it or hand it; it was handed to witness; witness threw it on board; hollowed out to the captain; threw it as near the captain as possible; it lodged on the deck; there was no obstruction between the captain and the package; it did not fall in the water; witness takes account of all freight; he leaves the boat at 9 o’clock, having made out his freight list; there are benches and rails ; witness was the proper person to receive packages for the boat; the captain was at the wheel house, or steering ; threw the package on the uppar deck.
    
      Mr. Lafitte, sworn. — Witness was standing on the wharf, near the after part of the wheel house, looking at the boat; saw the package thrown ; directly turned round and saw Lloyd’s young man going up the wharf; don’t think any one could have seen the package picked up where he stood.— Barden was coming out of the steerage wheel house, and came to the side of the boat, and in doing so must have come towards the package; there is a rail goes round the deck; when the package was thrown ropes were all loose ; Wilbur asked witness about the package ; went with Wilbur to captain Barden ; captain Barden said he had no recollection of it; he looked in the pockets of the coat he had on; Wilbur was aft of the wheel house, and could not have seen it picked up; witness said to Wilbur he had seen the captain walk toward the package, and thought it probable he might have picked it up and put it in his pocket; the captain is a careful man about his business.
    
      Cross-examined. — Witness was aware that Lloyd had been sending packages of money by this line, for a long time; Lafitte & Co. took charge of them; witness knew Lloyd’s young man ; knew that the packages Lloyd was in the habit of sending, were packages of money ; Lafitte & Co. are agents of the boat in Charleston; there was an iron chest kept on board the boats, in which packages were locked up ; thinks there were two or three persons on the hurricane; Tom was on the deck, he is the pilot, a black man; the pilot was at the wheel when the package was thrown ; the upper deck has no net work or close work to prevent a package from falling off on to the lower deck; the deck is shelving.
    
      Mr. Madcap, sworn. — Was the passenger agent at the boat; witness cast off the stern line; was the last to leave the boat; passed up the wharf, met Lloyd’s young man walking leisurely with a package, which witness thought to be newspapers; told the young man he had better hurry, as the boat was off.
    
      Wilbur, recalled. — Witness saw the person that Laffiteau called captain pick up the package; it was thrown about the middle of the boat, between the sides ; saw the captain walk towards the package and pick it up.
    Here the testimony closed, and the case was argued very fully to the jury. There was no difference of opinion between the counsel for plaintiff and defendant, in regard to the rule of law, as to the degree of diligence required, on the part of the defendants, in discharge of the mandate committed to them in this case. The only essential controversy was as to the delivery of the package to the defendants, and their knowledge of the contents. As far as the facts of the case were concerned, they were submitted entirelyffo the decision of the jury, who found a verdict for the plaintiff.
    With regard to the first ground taken in the defendant’s notice, the jury were instructed that if they were satisfied upon the evidence of the authority of Laffiteau to receive the package, the receipt of it by him, with notice of the contents, was entirely equivalent to a receipt of it by the defendants themselves personally. The question of his authority to receive the package, was entirely submitted to the jury, upon the testimony they had heard. As to the delivery of the package to the defendants, the case was submitted: first, upon the evidence of the delivery to the captain himself, (one of the defendants,) who, if Lloyd’s clerk was to be believed, and was not mistaken, actually picked it up ; secondly, upon the proof of its delivery to Laffiteau, the clerk of Lafitte & Co. the agents of the boat, who said he was ’the proper person to receive packages for the boat, and the fact of whose receipt of the package was not denied. As far as the undertaking of defendants to carry this package was necessary to be established by the plaintiff, as well as their knowledge of the contents, were left as facts for the jury to determine upon the evidence, which went to shew that the defendants, through the agency of Lafitte &' Co. under an understanding with the plaintiff, had, for a long time, been accustomed to carry packages of money for the plaintiff, without direct compensation or hire, and that upon such evidence, the jury would be warranted in concluding (if they so believed,) there was an implied contract in regard to this package, equally binding as though there had been evidence of an express contract. Assuming the delivery of the package to the defendants, or their authorized agents, with notice, express or fairly to be implied, of the nature and contents of the same, to be established by the evidence, there seemed to be no doubt of their liability, as no return had ever been made or account rendered of their execution of the mandate.
    The defendants appealed, and moved fora new trial, upon the following grounds:
    1. Because his Honor, the Recorder, in reply to a question from á juror, expressly instructed the jury that a delivery of the package to Laffiteau, (who was the clerk of Lafitte & Co.) was equivalent to a delivery to the defendant, captain Barden ; whereas it is respectfully submitted that in a case of mandate or bailment without hire, it is necessary that the delivery should be directly to the mandatary, or to some person expressly authorized by him to receive it.
    
      Cited in 1 Livermore, 314.
    2. Because there was no evidence that the defendants, or either of them, knew that the contents of the package were ( valuable : and they cannot, therefore, he held liable for the money.
    3. Because the business of Barden and Brooks, as steamboat owners, was that of carrying for hire, and they cannot, therefore, be made liable for not carrying safely without hire, unless there be proof of a special undertaking to that effect.
    4. Because the verdict was, in other respects, against law and evidence.
    
      Porter, for the motion.
    
      Yeadon, contra.
   Withers, J.

delivered the opinion of the Court.

The defendants in this case do not occupy a position more responsible than that of a mandatary, or one who enters upon the service of carrying without reward ; and it is well to determine what questions do not arise in the cause in the outset. No question then arises as to the degree of diligence to which the law would hold them, if liable at all. No question is presented as to the power of one of several partners, associated as common carriers for hire, to contract a liability that shall effect the copartnership by means of an assumption, beside the perview of the leading object of the association; for whatever liability has been incurred, has been made to rest upon testimony of what the “ line” (that is the defendants) had been accustomed to do for the plaintiff, in the transportation of his packages of money. No dispute exists as to the responsibility of defendants, in case Barden actually received the package, which is the subject of this action ; for if he did, no account whatever is given of it, and liability would follow of course. Nor is itdeeemed questionable that, according to the doctrine of the common law, a mere agreement to carry without hire, is not binding, for it is without consideration — that is, mere nonfeasance; this is well supported by what is elaborately collected and set forth by Judge Kent, in the case in 4 John. 84.

The only question, then, is whether a mandatary can become liable, as having entered upon the discharge of his undertaking, by the delivery of the article to be entrusted to him, to one who, by a course of dealing, shall be regarded as his agent to receive it; or whether, in every case, it is necessary that the delivery shall be to the mandatary himself, or to one expressly or specifically authorized to receive for him. The same question, in another form, would be, whether an agency, on the part of Lafitte & Co. to receive for the defendants, the package.of money in the present case, to be transported to Savannah, without reward, can be implied, as such agency might be implied in relation to articles which were to be carried for hire.1

1 Starkie, p.82.

The question was submitted to the jury, whether Lafitte & Co. were authorized to receive the package for defendants, and the instruction was, that if so, the receipt of it by them, was equivalent to the receipt of it by Barden and Brooks.

We are able to perceive no good foundation for an objection to this doctrine. To simplify the matter, suppose Bar-den had not been one of the partners, but himself art agent merely — the master of the vessel. The actual receipt by him, of the package, it is conceded would fix the liability of those whom he represented, with whatever grade of liability the law would throw upon a mandatary. If so, how is the principle varied when we hold that the same liability may be grafted on the act of another agent, provided the course of the parties charged testifies that such other agent was duly authorized to receive such packages for transportation?— Whether the principals have received through one agent or another, can possibly involve nothing of legal principle, whether they are to be paid for services or not, but only a question of fact resting on proof only: and so it was ruled below.

A very good illustration of the idea may be found in the case of Williams v. Cranston, which is a case not unlike the present in its distinguishing characteristics.

The motion is refused.

Richardson, J. — Wardlaw, J. — and Frost, J. — concurred.

Motion refused.  