Daniels v. Barney

22 Ind. 207 | Ind. | 1864

Perkins, J.

In 1855, the legislature of Indiana enacted: That all persons, associations of persons, or companies, usually called Express Companies, regularly engaged, or hereafter to be engaged in the business of carrying or transporting packages or parcels of bank notes, coin, merchandise, or other articles, over or upon any of the railroads, rivers, canals, or other thoroughfares in this State, and receiving, or agreeing to receive, compensation for such services, shall be, and they are hereby declared common carriers, and shall be subject to all the liabilities to which common carriers are subject according to law.

Sec. 2. Such persons, associations, or companies, shall file in the office of the recorder of each county in which their business is conducted, or where they may have an agency or office, a statement showing the full name of ev.ery. such person and member of every such association or company, and also his or her proper place of residence, and the amount of capital employed in such business; and' also an agreement that legal process served upon any agent of said person or persons, association, or company, in such county, shall be deemed and taken as good service upon such person or persons, association, or company; and it shall be the duty, of the recorder to make a record of the same, and also to publish in a newspaper of the county, if there be a newspaper, or otherwise to- post up in three of the most public places in the county along the proper route or line, a full and complete copy of such statement and agreement, which shall be duly certified by said recorder: Such statement shall be signed by the persons and,members of such associations or companies, and shall be verified' by oath or affirmation before the same is admitted to record. The recorder shall be-entitled to receive and demand from the person or persons, association, or company, for the service herein required', the sum of'5 dollars. Until such notice be given it shall not be lawful for any person,. association,, or- company, to transact the business named in the first section of this act in such county; and any person, member of any association, or company, or any agent thereof, violating the provisions herein, contained, shall for every such, offence, be guilty, of a misdemeanor, and upon conviction thereof shall be fined not. less than 10 nor more than 100 dollars, in the name of the treasurer of the county:. Provided, That nothing contained in this section shall be construed to affect the rights or privileges of persons, citizens of this State, engaged in the ordinary transportation of merchandise, produce, or other articles, in wagons or other conveyances.

Sec. 3. Railroad companies and the owners and masters¹ of steamboats, canal boats, and other, vessels,, shall not be exempted from the liabilities of common carriers, by the operations of this act, but'may be proceeded' against, at the option of the claimant, in case of any loss or damage, where the railroad, steamboat, canal boat, or other vessel shall have been employed in the conveyance of the messenger, of other agent of the person or persons, associations, or companies, named in the first section of this act. 1 G-. & H. 327.

In 186.0, the United States Express Company appointed Henry W. Daniels,'oí Indianapolis, agent for said company at that city, and took from him a bond in the penal sum of 2500 dollars, with Samuel P. Daniels and Joshua M. W. Langsdale, as his sureties, which bond was conditioned thus:

“Whereas the said Henry W. Daniels has been appointed agent by and for the said Express company at Indianapolis aforesaid; now, therefore, the condition of this obligation is such that if the said H. W. Daniels shall well and faithfully do and discharge the services, duties, and obligations as such Express agent, and in such manner that no loss or damage Bhall accrue directly or indirectly to said company by or in consequence of any act or acts, omission or omissions, failure or laches, unfaithfulness or dishonesty of said H. W. Daniels in or pertaining‘to the business of said Express company, then this obligation to be void,” &c.

Daniels failed to pay over money received for the transportation of packages, &e., and the Express company sued him and his sureties on his bond,'to recover the same. To this suit the defendants answer thus:

“The defendants answer and say that at the time of the execution of said supposed bond-, and ever since, the United States Express Company, for whose sole use this suit is brought, was an association of peTsons usually called an Express company, and were then, and-ever since have been, engaged' in the business of carrying and transporting packages, parcels of bank notes, coin, merchandise, and other articles over and upon the railroads, rivers, and other thoroughfares in this State and other States of the Union, and receiving and agreeing to receive compensation for such services; and that the employment of said Henry W. Daniels, and his appointment as agent for said U. S. Express Company mentioned in said supposed bond, was by said supposed bond intended to be, and in fact was, to serve the said Express ■company in the business aforesaid, to wit: in the county of Marion, in the State of Indiana. And the defendants say that all the moneys mentioned in the complaint, as having been received by said Henry W. Daniels, were received by him in the course -of his said employment and agency in the business aforesaid in said county.

“And the defendants further say that the said business' so carried on by said company, and so conducted and prose-■c-uted by said company through said agency and employment ■of said Henry W. Daniels, was and is wholly unlawful in this, bo-wit: that at no time before the execution of said supposed ■bond, nor at any time since, and while said Henry W. Daniels was engaged in the employment and agency aforesaid, did said Express company file with the recorder of said county, in which said agency was carried on and in which said company had an office all the time aforesaid, a statement showing the full name of every member of said association and company, and the proper place of residence of each such member, and the amount of capital employed in said business, and also an agreement that legal process served on any agent of said Express company and association, in said county, should be deemed and taken as good service upon said association and company; all which they wholly omitted to do in manner and form aforesaid, contrary to the form of the statute in such case made and provided; of all which the defendants were ignorant till the time of the commencement of this suit.”

The following was the reply:

“ The plaintiff, for. reply to the answer of the defendants, says that the bond mentioned in the complaint was given as a guaranty to the plaintiff, among other things, that the defendant, Henry TP., would faithfully account to the plaintiff for all-moneys that should come into his hands for the use of the plaintiff in the course of his employment in said business.

“And the plaintiff further says that the several sums of money alleged in the complaint to have been received by said Henry W. Daniels for the use of the plaintiff, were received by him in the course of his employment for the use of the plaintiff, from those persons for whom the plaintiff had carried packages of goods, merchandise, parcels of bank notes, coin, and other articles of value, as a common carrier; and that he has failed to account for the same as alleged in the complaint.”

A demurrer to this reply was overruled and the plaintiff had judgment.

The bond sued on was not taken., so far as appears, pursuant to any statute; but bonds of indemnity for the performance of legal acts may be good at common law. See Byres v. The State, 20 Ind. p. 49.

Was the bond in question one of that character? If, by the contract of agency between the Express company and Daniels, he was to perform for the company only legal acts, the bond to secure the faithful performance of such acts was a legal one.

If, on the contrary, the contract of agency between the parties mentioned was for the performance of illegal acts; as if it was agreed between them, at the making of the contract, that they would carry on the express business without complying with the statute, set out in the opinion, and the bond was executed upon that contract, the bond was void in its inception. Says Story, in his work on Agency, section 195: “Nay, the principle is carried farther; and if the main object for which the agent is employed is legal, yet if, by the terms of the contract, and as a part of it, the agent is to act in an 'illegal character or manner in another part of the transaction, the whole contract will be contaminated thereby, and the agent can recover no compensation even for his legal acts under the contract. Neither can the principal enforce any of its- obligations.” It is not necessary that we should extend the consequences of illegality, in this case, so far as the extract from Mr. Story carries it.

If there was no such agreement as above described, but the bond was given upon a contract of agency in the performance of legal acts only, then the company had no right to require the agent to perform illegal acts, and the bond would not extend to anything connected with such acts, because they were not covered by the bond. See Story on Agency, § 344, et seq.

The reply of the plaintiff in the case, taken in connection with the answer, shows, with reasonable certainty, that all the money received by the agent, Daniels, was received as compensation for the performance by him, for the Express company, of illegal acts, viz: the transportation of packages, &c.

And -the plaintiff, to support a right to recovery, falls back upon this proposition of law, viz: that “if money due to a principal on an illegal transaction should be paid over to his agent for him by th.e party from whom it is due, it has been held that the principal may recover it from the agent; for the contract of the agent to pay the money to his principal is not immediately connected with the illegal transaction; but it grows out of the receipt of the money for.the use of his principal.” 5th ed., Story on Agency, § 347; See, also, Chit, on Cont., 9th ed., p. 620; Dunlap’s Paley on Ag., p. 62; Add. on Cont., p. 648; 11 “Wheat. 258; 11 How. 493; 16 M. & W. 185; 39 Barb. 140; 10 Ind. 109; 4 id. 8; 12 id. 199.

This proposition of law we admit, at least, in cases where the agent has not been concerned, by the order of the principal,.'in the execution of the illegal transaction, so far as it applies to the agent himself. It may be that if this suit had been brought against the agent himself, upon an implied assumpsit to pay over money received to the use of his principal, it would have rested upon a principle free from doubt. But this is not such a suit. This is a suit upon the bond of the agent, and against his sureties therein; and the question is, what acts of the agent are covered by that bond? If it was executed to cover illegal as well as legal acts, the bond was void ab initio. Story on Agency, § 195; Chit, on .Cont., 7th Am. ed., 677 et seq., and notes; Anderson v. Farris, 7 Blackf. 343. The bond, by its terms, embraced all acts in the scope of the Express'business; and it would seem that all parties were bound to know the law, and that the notice required by statute to render the business legal had not been given at the execution of the bond; and if it was then understood by the parties that the notice was not to be given, and the business prosecuted without, the bond Was illegal, as we have said, in its execution. But, on the other hand, if the bond was executed to cover only legally conducted business transactions, then, the illegal acts participated' in by the agent, by the direction of the principal, through which the money in question came to the hands of the agent, were not covered by the bond, and the principal has nothing to look to but the individual liability of the agent. These transactions could not be covered by the bond in parts, and not in parts. They were under the bonds as entireties or not at all. We think there can be no doubt about this. In any view of the case, therefore, we think no suit can be maintained on the bond in question'. See Dedham Bank v. Chickering, 4 Pick. (Mass.) Rep. 314.

McDonald $ Porter, and McDonald $ Roache, for the appellants.¹ L. Barbour and J. D. Howland, for the appellees.² Per Curiam.

The judgment is reversed, with costs. Cause remanded, &c.