
    FEIBER v. MANHATTAN DISTRICT TELEGRAPH CO.
    
      N. Y. Common Pleas, General Term ;
    December, 1888.
    [Affirming 21 Abb. N. C. 11.]
    1. Telegraph Messenger Company; liability for act messenger.] A telegraph messenger company, whose business includes the delivery of parcels by its messengers, for those who choose to employ it, is liable for any loss sustained by the employer which resulted from a messenger’s disregard of instructions given him.
    "3. Same ; where not liable.] Where, however, a messenger was directed by one summoning him to deliver a parcel of clothes to one D., and get a certain sum, or bring back the clothing, and the messenger-brought back a part of the clothing and a letter stating that the part returned did not fit, together with a check to pay for the part that was kept, all of which the employer refused to accept,—Held, that the company could not be held as for a conversion of the whole-parcel intrusted to its messenger’s care; and in the absence of evidence that the employer sustained any loss from the disregard of his instructions, the company could not be held for any loss.
    8. Remedy of employer .of messenger.] The employer’s. remedy was-against D., in an action for the price of the garments returned.
    Appeal from a judgment in favor of the defendant rendered in the fourth district court of N. Y. City.
    The plaintiff, Joseph Feiber, as’ assignee of Jacobs-Brothers, tailors, sued the Manhattan District Telegraph Company, for the value of a parcel of clothing intrusted by Jacobs Brothers to one of the defendant’s messengers for delivery to one of Jacobs Brothers’ customers.
    The decision in the fourth district court of New York City, where the case was tried, is reported in 21 Abb. N. C. 11.
    The further facts appear in the opinion.
    
      Charles L. Cohn, for the appellant.
    
      Vanderpoel, Green & Cuming, for the respondent.
   Per Curiam.

Though the defendant was organized under the act of 1848, entitled An act to provide for the incorporation and regulation of telegraph companies, ” it had in its service messengers whose business it was to carry parcels for those who desired to employ them in that work. It is a necessary incident to that business that the messengers shall receive and carry out the instructions of the senders of the parcels respecting the delivery. If the sender instruct. the messenger not to deliver a parcel except on the happening of a certain event, the messenger has no right to disregard that direction.

It matters not whether the defendant be a common carrier- or not, it is bound to obey the instructions of its employer respecting the delivery of packages that it undertakes to carry (Tooker v. Gormer, 2 Hilt. 71).

In -this case, the defendant undertook to carry for Jacobs Brothers to a Mr. Duckworth of Brooklyn, a bundle containing a suit of clothes and an overcoat, and the messenger was instructed to bring back the goods if they were not paid for. Mr. Duckworth, who appears to be a responsible man, took the overcoat and trousers, but refused to accept the coat and the vest because they were too tight. He had already paid Jacobs Brothers ten dollars, and he gave to the messenger a check for twenty dollars, with instructions to carry it, together with the coat and the vest, badk to Jacobs Brothers. He also sent a letter saying that the coat and vest did not fit, and that when they were made-a fit he would accept them. Jacobs refused to receive theclieck, or the coat and vest, and insisted that all the goods must be returned or none. Because Duckworth did not return the overcoat and trousers, Jacobs Brothers contend that the defendant is liable for the full value of all the-goods that the bundle contained, the argument being that the leaving of a part of the goods with Duckworthamounted in law to a conversion of the entire lot.

That view is not correct. Upon the theory that the defendant is liable for the loss that was occasioned by a violation of Jacobs Brothers’ instructions, our duty is to-inquire, What was the extent of that loss ?

If the instructions had been literally carried out, all the-clothes would have been returned to Jacobs. The grievance is that the trousers and the overcoat were not brought back, as well as the vest and coat. Jacobs has no right to-make any claim for the vest and coat, for these articles were-returned to them. For the trousers and the overcoat,. Duckworth paid, or tendered what he considered, the value, and there is nothing in the evidence to show that he under-, valued them, or that Jacobs would have sustained any loss whatever, if they had accepted the $30 in payment for those garments. The plaintiff failed to offer any proof as to the value of any of the articles, his theory of the case being that he was entitled, without reference to the actual value of the goods, to recover the sum that Duckworth would have been bound to pay if he had accepted the •entire lot of clothing. The case is, therefore, barren of evidence to show that Jacobs sustained any loss at all. Though the justice may not have found his judgment upon the right ground, there is nothing to lead us to the conclusion that the plaintiff was aggrieved by the decision.

If Duckworth ought to accept the coat and the vest, Jacobs Brothers can sue him for the price. If the coat and vest do not fit reasonably well, Duckworth is not hound to take them, nor ought Jacobs to be permitted to evade the •question that Duckworth has raised as to the fit of the garments by the technical claim that goods that were returned to them, have been wrongfully converted by the •defendant.

We must not be understood as intimating that the •defendant would not have been liable if the.messenger had ■collected the money from Duckworth, and then lost or misappropriated it. There is no such question in this •case.

Our decision goes no farther than to hold that if a messenger be instructed not to deliver goods except upon certain conditions, he is liable if he makes a delivery in violation of those conditions.

Judginent affirmed. 
      
       Van Hoesen and Bookstaver, JJ.
     