
    Barney McKay, Respondent, v. Buffalo Bill’s Wild West Co., Appellant.
    (Supreme Court, Appellate Term,
    June, 1896.)
    Contract — Liability of theatrical manager for baggage of member of troupe.
    Upon the disbandment of defendant’s company the plaintiff failed to tag .his- trunk or to see to the delivery thereof to, the expressman, and upon his arrival at the railroad depot failed to. find it. He thereupon started to go to the baggage car, but was dissuaded by defendant’s contracting agent, who stated that i-f he would go to Washington with the other employes, for whom a combination ticket had been procured, defendant would be responsible for' the trunk. Held, that while defendant was not primarily liable for-the loss of'the trunk, the agreement of the agent was founded on a good consideration and rendered it liable.
    Appeal by defendant from judgment of the Eighth District Court in favor of the plaintiff.
    
      S. L. Samuels, for appellant.
    J. L. Brown, for respondent.
   McAdam, J.

The plaintiff entered defendant’s employ as sergeant of the. colored company of performers in its exhibition called Black America.” The defendant had a baggage car for -its employes’ baggage, and there the plaintiff kept his chest containing his wardrobe and effects.

On .November 30, 1895, the season closed at Philadelphia, and the men were discharged, and the following day the employes were paid off. When the expressman came for the trunk, the plaintiff was not present to attend to the delivery of his; the other employes had tags placed upon theirs, and they were taken to the train by the expressman employed by the defendant. Mr. O’Brien represented the defendant at the train in checking the baggage for the men. When the plaintiff came there for his check, his trunk could not be found, and he was told that he should have been at the grounds, like the other men, and attended to the tagging and delivery off his trank. • The trunk was never recovered, and the action is for the value of the trunk and its contents. The justice awarded judgment for $75. No fault is found with the amount. The question presented is whether any liability was established against the defendant.

The plaintiff admits that the order was given to the men to put tags on their trunks, preparatory to departure from Philadelphia, and that they were, notified that the expressman was coming for the trunk the following morning; but he denies receiving any notice to attend at the grounds to assist in the delivery of the baggage.

The contractual relations between the parties having terminated on November 30th, the retention of the plaintiff’s trunk by his consent and for his benefit until the following day created at most that species of bailment called deposit, the distinguishing feature of which is that the keeping is gratuitous. Edwards on Bail., § 10. It does not bind the depositary to keep the goods for an unlimited time; for he may tender them to the owner, giving him a reasonable opportunity to remove them, and thus terminate his responsibility, Roulston v. McClelland, 2 E. D. Smith, 60. The bailee in such a case is liable only for a loss or injury to the goods resulting from his gross negligence, or, which is the same thing, from his omission to use slight diligence.

The plaintiff knew that the defendant’s show was breaking up, that its members were returning to their homes, that the trunks were to go on the cars the next day, that each man was required to put a tag upon his trunk giving the name of the owner with its place "of destination, that it might reach there in safety, and that the employes were expected to exercise some care .in respect to their own baggagé; for the defendant had many things connected with the breaking up of the show to attend to, which would necessarily «divert the attention of its officials from the details of removal and transportation of. the individual property of the different persons who were formerly in its employ in subordinate positions. Yet the plaintiff admits that he neglected to attach the required tag to his . trunk, or attend to its delivery to the expressman who was to take .it to the railroad station at Philadelphia, where it was to be checked for Washington. He could hardly expect a gratuitous bailee to exercise more care over his property than' he was willing to bestow upon it himself. The other employes of the defendant complied with its order, which was a reasonable one; put tags on their trunks and attended to the delivery of them to the expressman; and if the plaintiff had been equally careful his trunk would, probably, have reached its destination as safely as theirs. The plaintiff, could not cast upon the defendant duties more onerous than the nature of the bailment and the exigencies of the situation demanded.

If the proofs had rested here, there would have been" no difficulty in holding that the plaintiff had failed to prove that the defendant was guilty of gross negligence, or that he himself was free from neglect contributing to the loss. But the plaintiff went" further. He proved that when it was "discovered that "his trunk had not reached the railroad depot at Philadelphia, he proposed to go to the baggage car to look it up, when Hr. Parker, the contracting agent of the defendant, and the person delegated, by it to attend to the transportation of the men, told him not to do so, but to go to Washington with the other men, "and if he did, the defendant would be responsible for the safe delivery of his trunk; upon which assurance the plaintiff forbore all effort to find the trunk, and went to Washington as requested, after first giving Mr. Parker the address to which he wanted the trunk forwarded.

The responsible nature of Mr. Parker’s position gave him authority to make this contract for the defendant. It was within the apparent scope of his duties founded on a sufficient consideration, and made the company liable to the plaintiff for the production and forwarding of his trunk, or for payment of its value in case of failure to forward the same as agreed. The defendant had previously assumed an obligation respecting the care of the trunk, though of a limited character, and the plaintiff .was led to assume that the defendant knew where the trunk was, or by the exercise of care could discover its whereabouts and forward it to him. At all events this was the obligation it assumed. If this promise had not been made the plaintiff might, perhaps, have remained at Philadelphia and discovered the whereabouts of his trunk and recovered it, or obtained some substantial evidence of gross neglect upon the part of the company, through which he might have succeeded in holding it for the loss. He was dissuaded from such effort by the assurance given to him on behalf of the company by its contracting agent, and it will not do for it now. to say that the plaintiff surrendered nothing on the faith of the agreement made.

The slightest consideration is sufficient to support the most onerous obligation. Oakley v. Boorman, 21 Wend. 588, cited and approved in Luddington v. Bell, 77 N. Y. 141; Hamer v. Sidway, 124 id. 538. “A valuable consideration is one that is either a benefit to the party promising or prejudice. to the party to whom the promise is made” (2 Kent’s Com. [12th ed.] 465); and courts “will not ask whether the thing which forms the consideration does, infact, benefit the promisee or a third party or is of any substantial value to any one. It is enough that something is promised, done, forborne or suffered by the' party to whom the promise is made as consideration for the promise made to him.” Anson’s Cont. 63.

The defendant claims that under the contract made with Parker, the defendant assumed" the "liability only of a forwarder, and that negligence resulting in a loss would have to be proved against it. ■ This might be so if the defendant had recovered the trunk, and it had been lost in transit from Philadelphia to Washington. But that is not this case, for it is not contended that the trunk was ever forwarded to Washington. Therefore, there is nothing to which the legal principle invoked can be applied.

The contract under which the plaintiff was employed provided that on its termination the defendant would pay his fare to Washington, and it was clearly contemplated that his trunk and wardrobe should return with him; hence the interest the defendant took in seeing that the men were furnished with transportation and their trunks.. cheeked at. Philadelphia. The ticket furnished was what is known among traveling' troupes as a combination, ticket, intended for all the employes going to Washington. The defendant was interested in having the plaintiff go with the' other employes on this ticket, for, otherwise, it would have been obliged under the contract to pay the plaintiff’s, fare at an increased rate.

- The justice reached his-conclusion on the entire testimony; and in view of the unperformed obligation which the defendant assumed, to recover and forward the plaintiff’s trunk, the judgment is sufficiently sustained, and must be affirmed, with costs. •

Bischoff, J., concurs.

..Judgment affirmed, with costs.  