
    Mechanics and Traders’ Bank v. J. H. Gordon et al.
    Where a steamboat is in the habit, of charging freight for carrying remittances of money, if a package containing money he handed to the captain without informing him of its contents, there being no charge for freight, the owners of the vessel are not liable for the money in case of its loss. The captain is responsible as depositary merely. C. C. 2508.
    APPEAL from the District Court of St. Landry, Overton, J,
    
      C. L. Swayze, for the plaintiff,
    contended : The defence set up by defendant, that he was forbidden by the laws of the United States from carrying and delivering letters on board his boat, cannot avail him, because, 1st, it was not such a package as is usually sent by mail.' 2d. Because having promised to deliver the package, he was bound to do it, for he knew that the business wag committed to him with that expectation. Dr. Paley says, in his Treatise on Moral Philosophy: “ Whoever undertakes another man’s business makes it his own; that is, promises to employ upon it the same care, attention, and diligence that he wopld do if actually his own, for he knows that the business is committed to him with that expectation, apd he promises no more than this.” Paley, b. 3, p. 1, ch. 12.
    3d. He was in the habit of taking letters on board his boat and deli vering them to different persons ; this is abundantly sh.own by the, testimony on the record. He cannot profit by his own wrong. Why should this package be made an exception to his habit and rule ? Because it contained money. That is the strongest reason why it should not.
    It is discretionary with the bailee to accept or not accept the trust; but once he has accepted it, by the very act of acceptation, he contracts towards the bailor the obligation of executing the trust, and if he does not do so he renders himself responsible in damages for the consequences. Pothier, vols. 3 and 5, art. 1, No. 38.
    Although mandate is a contract which concerns only the interest of the bailor, one in which the bailee interposes but to confer pleasure in the bailor without having any interest in that which forms th,e object of it, still he is bound to discharge the trust strictly, not only in good faith, but with all the care or dexterity which may be necessary in the discharge of the trust; he is liable for the consequence of errors and for the slightest neglect, levissima culpa. The rule governing such cases is this, that where the objecs of the contract is of a nature to require the greatest care and attention, the bailee is bound to observe or bestow them, and in such cases, he is liable for the slightest neglect, levissima culpa. When, on the contrary, the affair is of a nature to demand but ordinary care, it suffices that the bailee should observe or bestow but ordinary care, and he is liable but for slight neglect or fault. 3 Pothier', p. 124, 125, Nos. 46 to 50.
    The attorney is responsible not only for unfaithfulness in his management, hut also for his fault or neglect; nevertheless the responsibility with respect to faults is enforced less rigorously against the mandatory acting gratuitously, than against him who receives a reward. L. C. 2972, 2277. 6 Toullier, p. 300, No. 288; p. 301, 302, 303. 11 Toullier, p. 46. Napoleon Code, p. 383, art. 1991, 1992.
    Circumstances may occur that would justify a court in enforcing damages with much rigor. The remark in article 2972 of the Civil Code amounts to nothing. It is but a suggestion merely directory and to be varied and governed by the particular circumstances of each case. Napoleon Code, p. 287, art. 1374 ; p. 383, art. 1992. The correct rule is laid down in 3 Pothier, p. 124,125, No. 46 to 50. But Pothier lays down another rule: he says, that it is of the essence of the contract of mandate that it should be gratuitous, that is, that the bailor should undertake the trust as an act of friendship to the bailee, and that the bailee should not oblige bimself to pay money as a consideration or price of the discharge of the trust. 3 Pothier, p. 119, art. 3, No. 22. 10 L. R. 503.
    The ge'neral principle of the civil law is, that though a mandatory is at liberty to reject a mandate, yet if he chooses to accept it, he is bound to perform it according to his engagement. Story on Bailments, 117, 123, 125. Jones on Bailments, 57. 2 Raymond’s Rep. 907. 2 Johnson’s Rep. 92. Pothier, Contrat de Mandat. 1 Domat. Merlin Repertoire Mandat. Pardessus, Droit Commun. Brown’s Civil Law, note, 73. 2 Kent, 443, 443. 5 Tenn. Rep. 143. Joore v. Deas, 4 Johnson, 84.
    Receiving a letter to deliver, or money to pay, or a note by a bank to collect, and by negligence omitting to perform the trust, the mandatoiy, though acting gratuitously, becomes responsible for damages resulting from his negligence. The delivery and receipt, of the letter, money or note, creates a sufficient consideration to support the contract, and is a part execution of it. Durnford v. Patterson et al. 7 M. R., O. S, 460 to 464. Shelleheer v. Glyn, 2 Mees & Webb, 145. 2 Kent, 57.0.
    A merchant is responsible for the loss of money collected by his clerk for one of his customers, if lost through the fault or negligence of the clerk. Wees v. MeMicken, 7 M. R., O. S. 54.
    Carriers are subject, with respect to the safekeeping and preservation of the things entrusted to them, to the same obligations and duties which are imposed on tavern keepers in the title of deposit and sequestration. C. C. 2722. They ar,e answerable not only for what they have actually received in their vessel or vehicle, but also for what has been delivered to them at the port or place of deposit, to be placed in the vessel or carriage. C. C. 2727, 2296, 2297, 2299. 9 L. R. 33. C. N. 1783. Carriers and watermen may be liable for the loss or damage of the things entrusted to their care, unless they can prove that such loss or damage has been occasioned by accidental and uncontrollable events. Abbott on Shipping, 277. Boulay, Patis. tomel. C. N. 1784. C. C. 2725. 1 L. R. 349. 11 L. R. 206. 2 Peters, 150.
    The defence which the defendants set up, that the service to be rendered by them was gratuitous, cannot avail them. Why did they undertake to perform the trust? Had they declined to perform or discharge the trust, Mr. Porter would have sought soma one else who would have performed it. Nor can it avail the defendants that Mr. Porter did not inform Captain Gordon that the package contained money ? He informed him that “ it was of value,” and enjoined upon him to be cautious and careful. It is not only money that is valuable. Suppose the package had contained bills of exchange, land scrip, (which was transferable by delivery,) treasury notes, bills of exchange, or promissory notes, the loss might have been equally as great. Suppose it had been simply a letter containing instruction from a planter to a factor to insure buildings or property to the amount of ten thousand dollars, and Gordon had accepted the trust and promised to deliver the letter, knowing its object and purpose, had failed to deliver from absolute neglect, and the planter’s property meanwhile had been consumed by fire, would not the loss have been occasioned by the negligence of the mandatory? And would he not be responsible ?
    It will be remembered and noted, that Captain Gordon was warned by Mr. Porter that the package was of value, and that he should be cautious and careful with it. Captain Gordon, with this information and under these instructions, accepted the trust. Hbwhashe performed it? By lettiDg the package remain in th.e boat a fortnight; by finally not delivering it at the place he had promised to deliver it; but, by his negligence, causing the loss of the entire sum to the plaintiffs. Are the plaintiffs entitled to no redress. Can one hold himself out to the world as a public carrier, asking the confidence and soliciting the patronage of his fellow-citizens, nay, absolutely undertaking and promising to discharge a trust, then violate his promise, fail to discharge the trust, subject his fellow-citizen to a heavy loss by his negligence, and then take refuge under the plea that he was forbidden by the post-office laws to deliver the package ? Or shall he protect himself by urging that the service to be rendered was gratuitous ? Why did he accept the trust ? Why did he not (if he did not wish to undertake it,) say to Mr. Porter, “I cannot comply with your request. The law forbids it; moreover, I would get nothing for it ?” But no! he undertakes it, promises to perform it, and when the loss is occasioned by his negligence, urges as a flimsy pretext and subterfuge, that the service was a gratuity and that the law forbade him. Is this not “ keeping the promise to the ear and breaking it to the hopes ?”
    A judgment is, therefore, claimed against all the defendants in solido; and if they be not all liable, then against Gordon individually. /
    
      Lewis and Porter urged the following grounds against the responsibility of the defendants: 1. No contract of affreightment was made so as to make the defendants liable as common carriers, inasmuch as no bill of lading was given and no freight charged, which was necessary in order to make defendants liable as common carriers, or to require of them extraordinary care and diligence; so that even admitting the loss of the money, yet gross negligence must be proved to render defendants liable. L. C. 2972. 2. Gordon being ignorant that there was money contained in the package, cannot be made liable for its loss; this would be manifestly unjust. 3. Admitting that a contract was made by Gordon to deliver the letter to Bell, this contract being in contravention of law, viz : the laws of the United States in relation to the post-office, could give rise to no action whatever. L. C. 1886, 1887, 1889. 4. If any contract was made or can be presumed, which we deny, it was fully complied with by depositing the letter in the post-office in New Orleans. Acts of Congress, 3d March, 1825, sec. 6. 5. Gordon cannot be presumed to have made a contract which would subject him to a fine, which would have been the case here. See Post-office Regulations.
    A jury, on a full investigation of the case, rendered a verdict for the defendants, and, unless upon very strong showing, the court will not disturb the verdict. There is testimony in the record, to wit, of Charles Porter and Samuel C. Bell, both cashiers of the bank, which is specially objected to.
   The judgment of the court was pronounced by

Preston, J.

The cashier of the Branch of the Mechanics and Traders’ Bank at Opelousas, testifies, that on the 12th of June, 1847, at the steamboat landing in Washington, he delivered to Captain John U. Gordon, of the steamboat Bois d’Arc, a package containing $10,000 in bank notes, with a letter and a scroll, all of which were directed to the cashier of the Mechanics and Traders’ Bank in New Orleans, with a request that he would deliver the same to Samuel C. Bell, the cashier, on his anñval in New Orleans; further, that he stated to him that the package was valuable, and that he should be careful with the same and deliver it to Mr. Bell; and that the captain replied that he would. The money was never received by the bank in New Orleans. The witness did not, at the time of delivering the package, state the amount of money it contained, promise to pay freight, or to make compensation to him as master of the boat for taking charge of the package.

The clerk of the boat proves, and it is not contradicted, that the charge in favor of the boat for carrying money as freight was a half per cent, whether it was in bank notes or specie; the charge being made no doubt more on account of the risk than the trouble of transportation. He further leads us to conclude, that when money was received for transmission on freight or otherwise, it was locked up in a chest kept for that purpose. If the money had been delivered to the master of the boat as a common carrier, he would have charged for the owners of the boat, fifty dollars for its transportation to New Orleans, his care of it, and the risk with regard to it; and the cashier would, in the exercise of common prudence, have taken a bill of lading or receipt for so large an amount. We are satisfied, therefore, that there was no contract made which bound the defendants as common carriers, and rendered them responsible as such for the loss of the money. The authorities quoted by the defendants’ counsel from Story on Bailments, articles 498, 495, 499, 500 and 530, are conclusive on this part of the case. See also 9 L. R. 84.

The plaintiffs do not charge Gordon individually, as a bailee for hire. Indeed, it would have been improper to have made such a contract with him, being master of the boat and bound by his employment to obtain all freight in his power for the owners of the boat, and not for himself. It is not pretended, that a bailment for hire was made with him individually.

The question remains, can the defendants or John H. Gordon be charged as depositaries or mandatories of the plaintiffs ? for, as they took charge of the letter not as carriers for hire, they must be regarded in this light. Indeed, it is proved, aDd is a matter of notoriety, that all letters and packages handed to the master and clerk of the boat were received and carried to New Orleans, and vice versa, and were gratuitously delivered to the correspondents if convenient, or deposited in the post-office. And this custom and accommodation, as observed by plaintiff’s counsel, no doubt originated and has been kept up in consideration of the business and patronage which the city and country extended to the boat in carrying freight and passengers. The custom and accommodation is entirely gratuitous.

Sir William Jones held, that a gratuitous bailee was responsible only for gross negligence amounting to a breach of good faith, or fraud. Judge Story adopts the principle without the qualification of a breach of good faith or fraud. — p. 21 art. 19. Our code declares, that the depositary is bound to use the same diligence in preserving the deposit, that he uses in preserving his own property. Code, 2508. The diligence required of a mandatory acting without reward we suppose to be the same. Code, art. 2972. And, as it would not be permitted to men to plead, that they were more negligent than men ordinarily are, the true rule is, that gratuitous bailees are required to exercise the diligence which men of common prudence ordinarily use. The owners of the boat are excused from liability for the loss of gratuitous deposits on their boat, because they entrusted their own property to the officers, and it is not suggested that they were reputed to be more than ordinarily careless or unskillful.

The most difficult question remains, as to the individual liability of Captain Gordon ; for the plaintiffs contend, that the money was specially entrusted to his care, with an injunction to be careful, as it was valuable; and that he agreed to deliver it personally to Samuel C. Bell, the cashier of the bank in New Orleans on his arrival, and was guilty of gross negligence in not doing so.

The cashier does not state that he informed Gordon of the amount of money contained in the package. Soon after its delivery, he declared to the witness Taylor, that he concealed the amount purposely, because a stranger was standing by and he did not wish to make the amount public. He subsequently stated the same thing, as proved by other witnesses. Moreover, we are led to the conclusion, that he did not inform Gordon that the package contained money at all, because he does not say so, and yet would have proved it if he had so informed him,and not have left so important a fact in this case indoubt. Besides, the reason given for concealing the amount, was equally a reason for concealing the fact, that the package contained money at all. Moreover, two witnesses standing by did not hear him tell the captain that the package contained money.

Gordon was, therefore, simply the depositaiy or mandatory of a letter, or package in the form of a letter, and did not know whether it contained money or not. It was notorious, that the letters and packages of those who patronized the boat were put into the letter-box or clerk’s desk. This was the ordinary care always given or expected, however valuable the letters or packages were to the correspondents. It is urged, that it was expressly stated to the captain that this package was valuable. All correspondents regard their communications as valuable, and the officers of the boat were bound so to regard all letters and packages entrusted to their care. They often contained bills, orders or money, and often did not; they were all entitled to the same care, and the care to be exercised was known to the public. If the packages contained money or were of great value, the means of insuring greater care was palpable, by taking a receipt or bill of lading for them as freight, and thereby securing their deposit under lock and key in a chest provided for money or packages, the certain value of which was known.

There was no information communicated to Gordon which should have induced him to distinguish'this package from others. Indeed, it is proved by a witness who was present when the package was delivered to the master, that the remark of the cashier to him was, that the package was important to the bank; and if so, giving him no reason whatsoever to suspect that it contained the large and, to him, unknown sum of money for which he is sued. He therefore handed it to his clerk to take the same course which other letters and packages took. As the cashier did not commuicate to him that the packages contained money, he could not communicate it to his clerk. The scroll was too large to go into the letter-box, and therefore the clerk put all together into his desk. After this the captain depended on his clerk to deliver them like all other letters or packages, or put them in the post-office, and heal’d nothing more of the package until he learned that it was lost. The evidence renders it probable that the package was purloined, and exonerates the captain from the least suspicion of unfaithfulness with regard to the money.

The promise to deliver the package to the cashier in New Orleans is relied upon as a special undertaking to do so personally. The master of a coasting boat, necessarily much engaged at her points of departure and arrival in his appropriate duties, cannot be supposed to undertake to go about personally to deliver the letters and packages entrusted to him, even if informed that they are valuable. The well understood meaning of his promise to deliver them to whom they are addressed, is, that he will give them in charge to his clerks, to be taken care of and delivered by them in the usual manner.

To charge Gordon with the loss for not having delivered the money in person, the cashier of the bank should have shown to him that the packagage contained $10,000, and to have obtained from him an agreement, with that knowledge, to take the risk of carrying and delivering it in person to Bell, and not to deliver it at the post-office, or entrust it to the clerk of the boat. Considering the very large amount of money, it is not at all probable that the master engaged in all the exigencies belonging to the trip of a coasting boat, would have undertaken a gratuitous mandate attended with so much risk, and the considerable trouble of hunting and delivering the package to the cashier of a bank, when he might more properly, in his situation, have refused, and according to the usual charge of a half per cent, received fifty dollars for the service on account of the boat, and subjected her owners to the risk. At all events, if he undertook such a mandate with a full knowledge of the amount given him in charge, and his risk and responsibility, he would have undoubtedly exercised more care and solicitude, and would not have given the package to the clerk to be thrown promiscuously with the other letters and packages belonging to the boat, in the letter box or clerk’s desk. It would, at least, have been safely put in the iron chest under lock and key, and the loss would not have occurred.

The judgment of the district court is therefore affirmed, with costs in both courts.  