Swann v. Southern Express Co. , 53 Miss. 286 ( 1876 )

Chalmers, J.,

delivered the opinion of the court.

The Southern Express Company brought this action against George F. Swann and the sureties on the bond, executed by him while a messenger in its service, to recover the sum of $1,500 alleged to have been by him received in his capacity as messenger, and to have been by him embezzled or lost.

The package containing the money had been confided to the express company at Courtland, Ala., to be transported and delivered to B. F. Walker, at Troup, Texas. It seems to have been safely transmitted by successive messengers until it came into the hands of one Beall, who claims in turn to have delivered it to his connecting messenger Swann, at or near Canton, in this State. The latter failed to deliver 'or account for it at New Orleans, the terminating point of his route.

The express company, on the trial in the court below, having, for the purpose of establishing the reception of the package by Swann, produced his receipt therefor, executed to Beall in the usual mode upon the regulation messenger-book, carried by the latter, Swann himself was put upon the witness stand by the defence, for the purpose of denying in his own behalf that he had in point of fact received the package for which he admitted that he had executed the receipt. Objection was made and sustained by the court to the admission of this testimony, and verdict and judgment were rendered for the plaintiffs.

The defendants appealed, and assign for error the action of the court in the exclusion of this testimony.

It is conceded that ordinary receipts may be varied, explained or contradicted by parol, but it is said that receipts like the one in question stand upon a peculiar footing, which takes them out of the operation of the general rule.

This claim of special sanctity for this class of receipts is vested upon three grounds : —

1. Because of the nature of the business of the express company, and the impossibility of successfully prosecuting that business, if its several employés are permitted, after having signed receipts for articles delivered to them, to deny such delivery.

2. Because these receipts are in the nature of contracts to transport and deliver, and, like other written contracts, are not susceptible of contradiction by parol.

3. Because by the doctrine of estoppel the employé is precluded from denying the truth of that which he has once formally acknowledged.

In support of the first' ground, it is argued that the enormous business of the company, engaged as it is in the transportation over an immense area of country of countless sums of money and innumerable articles of merchandise, for all of which it iss, responsible to the owners, imperatively demands that for its own protection it shall have some system of tracing out the articles committed to its care, and, in case of loss, of fixing the responsibility upon the proper party; that for this purpose it wisely requires every agent into whose hands a valuable package passes to execute a receipt therefor to him from whom he receives it, which receipts, serving the double purpose of an acquittance to one and a check upon the other, are absolutely essential to the business of the corporation. This salutary, system, it is said, will be totally overthrown and destroyed, if each messenger and agent is allowed to contradict the official receipts executed by him, and thus to put the company to the proof in each case of that which he has previously acknowledged in writing.

This line of argument may suggest very cogent reasons why these corporations should exact of their employés stipulations to the effect that all receipts executed by them shall import absolute verity, and be unsusceptible of contradiction; but, in the absence of such stipulations, it furnishes no reason why the law should make such contracts for them. The contracts of express companies and the receipts executed by their servants stand upon the same footing as those of other persons, natural and artificial. The vastness of their business cannot impart to it any element which can invoke in its behalf considerations of public policy, or which can affect those principles of law which regulate alike the greatest and the smallest transactions. They are but a trading company, carrying on a private enterprise for individual gain ; and if the risks assumed by them be great, they are certainly voluntary, and are probably protected by the exaction of compensation correspondingly large.

Their receipts to the public at large, and the receipts executed by their employés to each other, stand upon the same footing as similar instruments among other persons. They are prima facie obligatory, but prima facie only. It is to the interest, indeed, of these companies that this doctrine should prevail, because, if the contrary rule was established, it would not be long before they would be clamoring for the repeal of a principle which would make them liable upon every receipt into the giving of which their agents might be entrapped.

The second ground upon which the claim is based, namely, that these receipts are in the nature of written contracts, and, therefore, cannot be changed or contradicted by parol, is equally untenable. It is true that a paper may be at once a receipt and a contract, but in such case it is only that portion of it which embodies the contract that is within the protection of the principle invoked, while that portion which constitutes the receipt remains subject to attack. Thus a bill of lading which acknowledges the receipt of certain merchandise, and stipulates for a specified compensation to transport it to a particular port, cannot be varied by parol, so as to show a different consideration or place of delivery, but it may be shown that in point of fact no such goods were received. To draw an illustration from the case at bar, the Southern Express Company, if sued upon its receipt for the money alleged to have been shipped from Courtland, Ala., to Troup, Texas, could not by parol add to or subtract from any of the stipulations contained in the instrument, but it might show that in fact the money never was received by its Courtland agent. 1 Greenl. Evid. § 305; Stapleton v. King, 33 Iowa, 28; May v. Babcock, 4 Ohio, 334, 347; Barber v. Bruce, 3 Conn. 9.

Even if we admit, therefore, that the signing by Swann of the messenger’s book was both a receipt for and a contract to deliver the package, it remains true that, while it may not be varied by parol in so far as it was a contract, it may be contradicted as a receipt.

We fail to see how the doctrine of estoppel, which is set up as the third ground of justification of the ruling in the court below, has any application to the facts of the case.

The express company can only claim that Swann is estopped from denying the reception of the money, by showing that it has been induced, by his signature on the messenger’s book, to take some step which will result in a loss to it, if he is now permitted to contradict it. It has shown no such action on its part. It is true that it was proved that it had paid the lost money to the owner of the package, but this it did because it was incumbent on it under the receipt executed bj*- its agent in Alabama; and this duty was equally obligatory whether the money was abstracted by Beall or by Swann. ,

It was said in argument, that, in consequence of the receipt, the company had brought this suit against Swann instead of against Beall; and should it fail here, it could not hereafter go against the latter with any hope of success. There is no legal obstacle to its doing so, and we cannot speculate upon the chances of success in that suit as affording a ground of action in this.

We think the court erred in excluding the testimony; it should have been admitted for what it was worth. If confined to a naked denial of the reception of the money, it would perhaps be of little weight as opposed to the receipt. It should have been allowed to go to the jury, to be given such weight by them as the facts of the case, the situation of the party and its own reasonableness and intrinsic probability seemed in their judgment to demand.

Judgment reversed and cause remanded.