
    Joseph Feiber, App'lt, v. Manhattan District Telegraph Company, Resp’t.
    
      (New York Court of Common Pleas,
    
    
      General Term,
    
    
      Filed December 3, 1888.)
    
    Messenger service—Instruction to messenger —Liability op company POR VIOLATION OP INSTRUCTIONS.
    If a messenger be instructed not to deliver goods except upon certain conditions, the company is liable if he makes a delivery in violation of those conditions.
    Appeal from a judgment of the fourth district court in favor of the defendant.
    
      C. L. Cohen, for app’It;-VanderpoeZ, Green & Cummings, for resp’t.
   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 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 vest, back to Jacobs Brothers. He also sent a letter saying the coat and vest did not fit, and that when they were made to fit he would accept them. Jacobs refused to receive the check, or the coat and vest, and insisted that all the goods must be returned, or none. Because Duckworth did not return the coat and vest, Jacobs’ 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 Duckworth amounted 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’ 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 overcoat were not brought back as well as the vest and coat. Jacobs has no right to make any claim for the vest and the coat, for those articles were returned to them. For the trousers and overcoat, Duckworth paid or tendered what he considered the value, and there is nothing in the evidence to show that he undervalued them, or that Jacobs would have sustained any loss whatever if they had accepted the thirty dollars 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 founded 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 bound 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 the goods that were returned to them have been wrongfully converted by the defendant. We must not be understood as intimating that the defendant would 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 further 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.

Judgment affirmed.  