Williams v. Carpenter & Co. , 36 Ala. 9 ( 1860 )

A. J. WALKER, C. J.

To absolve a debtor, who transmits money by mail to bis creditor for the payment of his debt* from the hazard of loss in the transmission, it is necessary that the remittance should be made by the authority, express or ifhplied, of the creditor, and in the manner and with the precautions prescribed by him. — Smith’s Mercantile-Law, 528-529 ; Warwicke v. Noakes, Peake’s R. 67; Hawkins v. Rutt, ib. 186; Townsend, Crane & Co. v. Henry, 9 Rich. Law, 318 ; 3 Phillipps on Ev. 440-441, note 11, (last ed.); 2 Greenleaf on Ev. 429, § 525. If it is impossible for tbe debtor to transmit the money in the manner and under the precautionary attendant circumstances directed by the creditor, he can not make the remittance at the risk of the creditor. His authority is to remit in the manner and under the circumstances prescribed, and if he remits without pursuing the directions, lie acts without authority. Like au agent, he must pursue his authority, aud strictly observe its limitations and qualifications. Story on Agency, 213, § 165.

From an application of tbe principle above stated to this case, it must result that, if the plaintiffs only authorized the remittance to be made under certain specified precautionary observances, tbe defendants would not be justified in making the remittance without them, because. they could not be. performed.

The plaintiffs’ letter of 3d March, 1855, authorizes the defendants to transmit the money by mail, at their risk, in sums of oue and two hundred dollars at a- time, taking the postmaster’s receipt, prepaying the postage, and registering the letter under the new post-office regulations. The plaintiffs’ subsequent letter of. April 2d, 1855, acknowledges the receipt of a letter enclosing one hundred dollars, and expresses tbe ho'pe of being shortly favored with the balance. This letter does not modify the instructions of March 3d, 1855, nor do we think that a modification of such instructions can be implied from it. It does not, in-terms, authorize a remittance by mail, but seems simply to pass it silently by as a matter previously settled.

The question, after the ascertainment of the fact that the money had been mailed, was, whether it was mailed üucler tbe precautionary circumstances, directed. If it was not, tbe mailing of tbe money wras at0the defendants’ risk, and it is totally immaterial whether tbe defendants could or could not have pursued the instructions given. If they could not have pursued them, they were without autliorityfrom the plaiiitiffs to transmit the money by mail. The evidence offered as to'the instructions of the postmaster-general, and as to the impossibility of registering letters, pertained to a totally immaterial matter, and was inadmissible on account of irrelevancy.

[2.] Tbe charge given could not possibly have prejudiced the defendants. If it had been the reverse of what it is, it would not have benefited them. Looking at the evidence, it is perfectly clear that, if erroneous, the charge has not prejudiced the defendants; and we would not, therefore, reverse, if upon examination we found it incorrect. — Salmons v. Roundtree, 24 Ala. 458; Shepherd’s Digest, 568-569.

Judgment affirmed.