37 Ill. 465 | Ill. | 1865
delivered the opinion of the court:
This was an action on the case brought by the appellee, David D. Haggard, against the American Express Company, for not delivering a package of money containing $170.30, sent to the appellee at Bloomington, Ill. The company was-sued as a corporation, the Legislature of this State having incorporated the persons who defended this suit by a public act to be found on page 379 of the Laws of 1859. There was service on the agent at Bloomington in the manner prescribed by the statute for service on corporations. The agent came in, and, without denying that he was the agent of the company, denied that he was the agent of such a corporation, and said he knew of no such corporation, and on this affidavit, moved to quash the return, which motion the court overruled. The object of the affidavit was to raise the question as to whether the defendants was a corporation, and as this was matter dehors the record the question was one to be presented by plea in abatement and not by motion. Holloway v. Freeman, 22 Ill., 201.
The counsel for the appellant then filed a plea in abatement in the name of “Johnston Livingston, William GL Fargo, Henry Wells and others,” admitting that they, “together with others,” are doing business under the name of the American Express Company, but denying that said -company is now, or ever has been, a corporation. A demurrer was sustained to this plea, and properly. It is defective in not giving the plaintiff a better writ. 1 Chitty, 446. It should have set forth who were the “others,” with whom Livingston, Fargo and Wells say they are doing business, under the name of the American Express Company,' in order that the plaintiff might .know against whom to bring his suit, if the plea should prove to be true.
The admission of the testimony of W. Haggard is also assigned for error. It appears that the witness was a clerk in the hardware store of the plaintiff', who was his uncle; that, he was in the habit of often receipting to the company for goods, sometimes two or three times a day, and that he receipted for the package in question, supposing, as he swears, that he was receipting for castings that had been left on the sidewalk. He swears he never received the money in question. After its loss was discovered, with the fact that the witness had given the company a receipt for it, he wrote to his father in Chicago, stating the circumstances, and thereupon his father paid to the plaintiff the amount of Ms loss. The witness was a minor, and the money was not paid at his request. He clearly had no legal interest in the event of this suit, and was a competent witness. His liability to the. plaintiff is discharged, and he has assumed none to his father, who voluntarily came forward and paid the money.
It is further urged that this payment of money has satisfied the plaintiff’s claim, and that his right of action is thereby gone. But the payment was not made for the benefit of the express company, and discharged no right of action which existed against them. This suit may be still prosecuted for the use of the father of the clerk, and such use heed not be expressed upon the record. Where A is primarily liable, and B only secondarily, A may still be sued for the benefit of B, though B has paid the debt. Thus, if insured property is destroyed by the act of a wrong doer, though the insurance company may have paid the loss, the owner of the property may still sue the wrong doer, and the recovery of the property will be for the use of the insurance company. Mason v. Lainsbury, 3 Doug., 61; Hart v. Western Railroad, 13 Met., 99.
It is also urged that the evidence of Fuller called out on the cross-examination was improperly received. Fuller was the agent of the company, and was put upon the stand by them to prove the custom of the drivers of the express wagons, in regard to the delivery of parcels and taking of receipts. The plaintiff, on the cross-examination, proved that it was the custom of the particular driver who had this package to steal money parcels, and that some time after this occurrence the company arrested him, made him surrender |850 in money and some valuable jewelry, and that the driver escaped from the officer and ran away. We think, after the examination in chief, this evidence was admissible.
The counsel for the appellants further urges, that even if the driver, having laid the package on the counter, stole it while the clerk was signing the receipt, the delivery was complete and the company discharged. But a delivery, to discharge the company, must be actual and bona fide, and not merely formal. Here the clerk swears there was no delivery, that he neither saw nor heard of a package of money, and thought he was receipting for a package of castings on the sidewalk. The company is a common carrier and must be held to the strictest responsibility for the honesty of its agents, and if one of them abstract a parcel while in the act of delivering it, the company will be liable even though a receipt be signed and the form of delivery gone through, by the driver’s laying the property, for a moment, out of his hands. We find no error in the record.
Judgment affirmed.