
    
      Walker & Bradford v. Dr. J. Crittenden.
    
    Defendant, by an agent, sent a letter containing a sum of money to be paid to plaintiffs (merchants) in Hamburg; the agent met one of the plaintiffs in Edgefield, and tendered him the letter : he declined receiving it at that place, and told the agent to deliver it to the house, or to the Post Master in Hamburg. Held, that this was merely varying the instructions of defendant to his agent, and not the substitution of a new agency which relieved the defendant from liability, upon the subsequent loss of the money previous to its delivery.
    
      Before O’Neall, J. at Greenville. Spring Term, 1848.
    This was an action of assumpsit on an account: the balance, about which there was no contest if the defence failed, was $182,25.
    The defence was payment. It seemed that the defendant in a letter addressed to the plaintiffs inclosed $153. This letter was handed by the defendant’s son to J. Simmons, to be delivered by him to the plaintiffs in Hamburg. Mr. Simmons met Walker, one of the plaintiffs, at Edgefield O. H. offered to deliver to him the letter, and told him it contained .money. He declined to receive it, and told him to deliver it to the house, or to the. Postmaster in Hamburg. Simmons proved he handed it to the driver of the stage and saw him hand it to a man standing in the door of the Post office whom he took to be the Postmaster.
    The Postmaster was examined and denied the receipt of the letter.
    The case was submitted to the jury; they were told Simmons was the defendant’s agent to deliver the letter and its contents to the plaintiffs in Hamburg. That Walker’s direction to deliver to the Postmaster merely substituted him for Walker & Bradford, but did not make Simmons their agent.
    The jury were told, if they believed the letter was delivered to the Postmaster, to find for the defendant. But they found for the plaintiffs.
    The defendant appealed, and moved the Court of Appeals for a new trial.
    1. Because from the time that the plaintiff Walker directed Simmons, the bearer of the letter and money, to leave it at the Post office in Hamburg or deliver it to the Postmaster, Simmons became the agent or bailee of the plaintiffs, and defendant’s liability for the safe delivery of the money ceased, and the jury should have been so charged by his Honor.
    2. Because his Honor charged the jury that notwithstanding the plaintiff Walker directed Simmons to deliver the letter to the Postmaster in Hamburg, yet defendant must sustain the loss, unless they were satisfied that the letter was actually delivered to the Postmaster; whereas the jury should have been instructed, that if they believed the loss originated by reason of the direction to Simmons by Walker to deliver the letter to the Postmaster, the plaintiffs could not recover.
    3. Because the verdict was unauthorized by law and the evidence.
    ARGrXJ MJ3NT.
    Young, for the motion,
    said, as soon as Walker gave the money a different direction he became responsible entirely, and Crittenden was no longer so; that Simmons became the bailee of Walker; that Walker had the right to receive the money, and therefore the right to give it a different direction. He cited Story on agency, sec. 465 and 477; Story on Bailment, sec. 207 and 210.
    Perry, contra,
    said Walker was not bound to receive money of the firm, any where else than at their Counting House. That Walker did refuse to receive it, and therefore could not have made Simmons his agent; and thatSimmons continued to he Crittenden’s agent until the money was properly delivered according to its destination.
   Withehs, J.

delivered the opinion of the Court.

The doctrine insisted upon here for the defendant is, that the act or language of Walker at Edgefield made Simmons the agent of plaintiffs, and stripped him of that relation towards the defendant.

If this be true, the effect of what Walker said and did, would be tantamount to a receipt of the money from Simmons, and constituting him expressly the plaintiffs’s agent to carry it to Hamburg. The fact, however, is, that Walker refused to receive the money, for reasons assigned, and it is agreed that he was not bound to receive it at Edgefield. Our construction of his interference must, therefore, give it an effect short of an actual receipt of the money. What was it in fact? No more than so varying the instructions.of the defendant to his agent, as to warrant the latter in making a delivery of the package to the Post Master at Hamburg equivalent to a delivery to Walker & Bradford. This was not substituting a new agency and new instructions for those proceeding from the defendant; but facilitating them rather, by pointing out an alternative mode by which Simmons should be able to discharge his undertaking for Dr. Critten-den. If Simmons had, in fact, delivered the letter to the Post Master, it would have been equivalent to a delivery according to Crittenden’s instructions. This was the very view submitted to the jury.

Imagine Simmons out of view; and allow the defendant himself to occupy the place of his agent. Would the failure of the defendant, in such case, to deliver the letter to the t Post Master work any other result than to leave him still liable for the debt? We apprehend the case before us to be substantially that just supposed.

Seeing no error, therefore, in the legal views of the Circuit Court, and the jury having found the facts against the defendant, there is no room for the interposition of this Court; and the motion is consequently dismissed.

O’Neall, J. — Evans, J. — and Waudlaw, J. — concurred.

Motion refused.  