Hosea v. McCrory , 12 Ala. 349 ( 1847 )

GOLDTHWAITE, J.

1. As this case can be decided without the examination of the question, whether a contract to carry a cash letter between two places, at each of which there is a post office, is invalid, as trenching on the post office regulations, we shall not consider it. Assuming, as the court below seems to have assumed, that such a contract has no validity, this furnishes no excuse for a refusal or neglect to deliver the letter when demanded, or for its loss, when the proper care for its preservation is wanting. The different counts of the declaration vary the statement of the cause of action, so as to allow the plaintiff’s recovery, if the money is traced to the defendant’s custody, and not afterwards accounted for upon request. We think the depositions offered by the plaintiff were entirely sufficient to warrant the conclusion that a particular sum of money was delivered to the clerk of the steamboat whilst the defendant was master, and in our judgment, the only real subject for dispute, is whether the latter is liable in consequence of the general usage of steamboats in this trade, to carry such letters.

2. Ordinarily, a steamboat could not be required to take charge of a cash letter, because the business of freighting does not include the transmission of money in that mode. Nor does it include, as we presume, the carrying of live stock or slaves, yet no one can doubt as to the former, that such a general usage and custom may have obtained, as to make the boat and its master responsible on the contract of an under officer in respect to such property. It is a general rule, of the utmost utility, that^where parties have not entered into’ any express and specific contract, a presumption nevertheless’ arises, that they meant to contract and to deal according to the general usage, practice and understanding, if any such ex-ist, in relation to the subject matter.® [2 Starkie’s Ev.^Jj&B.] The extent to which a general usage may impose an additional liability on the owners of a steamboat or vessel, is forcibly illustrated by the case of Emery v. Hersey, 4 Greenl. 407, where the owner of a vessel was held liable for the proceeds of goods shipped on his vessel, and consigned to the master for sale. [See also Morely v. Lord, 2 Conn. R. 389 ; Taylor v. Watts, 3 Watts, 65.] In Sewall v. Allen, 6 Wend. 335, the general responsibility of steamboat owners was considered as not extending to cover the loss of money entrusted to the captain, but there it is conceded the liability would exist, if this course of business was warranted by custom and usage. The previous decision of the supreme court in the same cause, (2 Wend. 335-) was based on the fact, that the money was received by the master, and the custom proved,, was for the master to carry packages of money oil his own account — the compensation being a personal perquisite.•

3. In the case at bar, the court put it to the jury expressly on the proof of a general usage, and charged that, if the evidence showed this general usage, the clerk must be considered as the agent of the master, and a delivery to him was', a delivery to the master, for the purpose of the suit. This,, we think, was a correct exposition of the law on this subject, and the charge which the defendant afterwards requested,, that the master was not bound, without proof that the clerk was authorized to carry cash letters, evidently refers to a spe--dal authority, independent of the general usage. In this-view, it was properly refused, as all which the plaintiff was required to show, was a delivery of the letter to some one placed by the master in a capacity to act for the boat. [Butler v. Basing, 2 C. & P. 613.] The whole case proceeds on the ground that the clerk of a boat is the person placed by the master and owners, to receive whatever the boat may carry, according to the general custom of trade; and if there was any question intended to be raided as to the precise extent of his agency, it rested with the defendant to show its limitation, after it was made out that he was the clerk of the boat.

We think the caúselas properly submitted to the jury on the general custom, though in this particular instance, it is very possible the particular usage of this boat was of itself sufficient to charge the master.

The views we have expressed seem in entire accordance with those declared by Judge Story in The Citizens’ Bank v. Nantucket Steamboat Company, 2 Story, 16, which we had no opportunity to examine until the opinion was written. There a common usage was established, and the learned judge' considered this as prima facie sufficient to charge the owners, though in that particular case it was rebutted by other proof, which induced the judge sitting as an admiralty court, to decree for the defendants. We are not called on to express an opinion, whether the verdict in this case was proper under the evidence, as that was for the judgment of the court below in awarding or refusing a new trial. There seems to be no error in the propositions on which the case went to the jury.

Judgment affirmed.