Fitzgerald v. Burrill

106 Mass. 446 | Mass. | 1871

Chapman, C. J.

The letter was delivered by the plaintiff, and received by Backup, with the agreement that it should be sent by mail as a registered letter. Both of them were mistaken in supposing that this could be done. When it came back from the Boston office to the possession of Backup, with the informa.tion that it could not be thus sent, he held it as bailee of the plaintiff without compensation, and owed the plaintiff merely the duties growing out of such a relation. But he had no authority, express or implied, to send it by mail as an unregistered letter, End subject the plaintiff to the risk of losing it in that way. The plaintiff had not left it with him for such a purpose. Nor had Burrill any authority to direct him to send it in that way. It was unlike a letter left at the office without any instructions, for in such case there is an implied direction and authority to send a letter according to its superscription.

The report states that Burrill, after having advised Backup to keep the letter a few days, spoke to him again about it, at the énd of from six to ten days, and, after inquiring about it, told Backup to send it by the usual course of mail. This. expression would authorize the jury to find that Backup sent it by Burrill’s direction. The ruling of the presiding judge, that the action could not be maintained against Burrill, was therefore erroneous: and, it not having been agreed that the court might pass upon this question of fact, and order judgment against Burrill, the proper order is, that judgment is to be entered upon the report against Backup, and a new trial is to be had as to Burrill.

Ordered accordingly.