
    Bernstine v. Express Company.
    Where a creditor, living at a distance from his debtor, requests the pay-, ment of the debt' without giving specific instructions as to how the money shall be sent, and the debtor sends it by an express company, and it is lost in transitu, the debtor may maintain an action against the company for its recovery.
    Error to the District Court of Mahoning County.
    Marx Bernstine lived in Gustavus, Trumbull • county, Ohio, and M. B. Bernstine & Co. did business at Mantua, Portage county, Ohio. Marx Bernstine was indebted to M. B. Bernstine & Co. in the sum of about two hundred and twenty dollars. About the 20th of January, 1879, the debtor received a letter from his creditors requesting him to “send to them the money” or a portion of it — “whatever he could ” — to apply on the debt. About nine days later the debtor delivered to the agent of the Union Express Company at West Williamsfield, Ashtabula county, Ohio, a sealed money package, containing $200, addressed to M. B. Bernstine & Co., Mantua, Portage .county, Ohio. When the package was delivered to the consignees at Mantua it contained but $100. The Adams Express Company and the American Express Company constituted the Union Express Company. This action was brought in the court of common pleas of Mahoning county , by Marx Bernstine, the debtor and consignor, against the express companies, as common carriers, to recover the missing one hundred dollars.
    Judgment was rendered in favor of Bernstine in the court of common pleas, and the district court on error reversed the judgment of the common pleas.
    
      H. II. Moses, for plaintiff in error,
    cited Buell v. Chapin, 99 Mass., 594; Gurney v. Howe, 9 Gray, 404; Crane v. Pratt, 12 Id., 848; Hutchinson on Carriers, 567, §§ 723 to 737; Finn v. Western Railroad Co., 112 Mass., 524; Hooper v. The Railway, 27 Wis., 81; Southern ^Express Co. v. Craft, 49 Miss.; Dunlap v. Lambert, 6 Cl. & Fin., 600.
    
      A. W. Jones, for defendant in error,
    cited Hutchins, § 733; Or cult v. Nelson, 1st Gray, 542; Merchants. Chapman, 4 Allen, 364; Putnam v. Tillotson, 13 Met., 517; Morris v. State, 25 Ohio St., 229; Gurney v. Howe, 9 Gray, 404.
   Nash, J.

The important matter of contention in this action is as to whether Marx Bernstine had the right to maintain this action. On behalf of the defendants in error it is claimed that the action should have been brought by the consignees, M. B. Bernstine & Co. This court is unanimously of the opinion that Marx Bernstine was the proper party plaintiff in the court of common pleas. Marx Bernstine, the debtor, was bound to pay his creditors, M. B. Bernstine & Co., in person. Buell v. Chapin, 99 Mass., 594. From this duty he could only be relieved by authority from his creditors, either express or implied, to pay to some one else. By the letter of January 20, 1879, M. B. Bernstine & Co. requested their debtor to “ send to them the money,” or a portion of it — “ whatever he could ” — to apply on the debt. This was not the appointment of an agent to receive the money from the debtor and transmit it to the creditor. It did not relieve the debtor from his duty to pay to the creditor in person. It amounted simply to a request for the debtor to pay, and informed him that the creditors were willing to receive payment of a part of the debt, if he could not pay all. The ownership of the money remained in Marx Bernstine after he delivered it to the express companies and until it was delivered to his creditors. The judgment of the court of common pleas in favor of Bernstine for the amount of the lost money and against the express companies should have been affirmed.

Judgment accordingly.  