| Md. | Mar 3, 1871
delivered the opinion of the Court.
This action was brought by the appellee, to recover the value of certain coupon bonds of the United States, which had been deposited by the plaintiff with the appellants, Maury & Co., bankers, for safe keeping, and which were abstracted from their custody by Leonard Huyck, and were lost to the plaintiff ;
In the course of the trial below, a number of exceptions were taken by the appellants, which will be disposed of in their numerical order.
The first exception was abandoned by counsel in the argument.
The second bill of exceptions presents the question of the admissibility in evidence of the exemplification of the record of Annie S. Coyle’s appointment as guardian of the plaintiff But this question has been rendered immaterial by the corrected record, showing that the suit was instituted by the appellee, “by Annie 8. Coyle, as his next friend;” the question, therefore, whether the record-evidence of her appointment as guardian was properly authenticated, was immaterial, and need not be decided.
The third bill of exceptions raises the question of the admissibility of a part of the testimony given by the witness, McNair, in answer to the fifth interrogatory. After having stated that he called at the defendants’ bank, and as agent for Mrs. Coyle, the plaintiff’s guardian, had demanded the bonds, and was informed by Maury, one of the defendants, that Leonard Huyck had taken them, he then asked Maurv “ what right Mr. Huyck had to go info his vault and take them ?” Maury said, “ he was acting for Mr. Osbourn, one of the defendants, the partner of Mr. Maury, that Huyck had a power of attorney from Mr. Osbourn to act for him.”
If the object of the testimony had been to prove the contents of the power of attorney, or to show the nature or extent of the powers thereby conferred, or to prove that Huyck was in fact empowered by Osbourn to act for him in the business of the firm, it is veiy clear that the written paper would be the only competent evidence for that purpose. But such was not the purpose or effect of the testimony.
It was an admission or declaration made by one of the defendants, showing merely the character or capacity in which he understood Huyck was acting, and as explanatory of his own conduct in permitting Huyck to have access to the vault where the bonds were kept. For that pui’pose, it was clearly admissible.
It may be remarked further, that the fact itself was altogether immaterial; for the responsibility of the defendants in the action was in no way affected by the question whether Huyck was or was not the agent or attorney of Osbourn, or authorized to represent him in the business of the firm.
It is unnecessary to express any opinion upon the points raised by the fourth and fifth bills of exceptions, as we consider them altogether immaterial to the decision of the case. The right of action against the defendants as bailees in this case was wholly distinct from and independent of any claim which the plaintiff may have against Huyck, and it is no answer, or defence to this action that collaterals had been placed in the hands of D. McNair, by Huyck, for the purpose of securing to the plaintiff the re-payment of the bonds. There is no evidence that the property and securities transferred by Huyck to D. McNair were accepted as payment or
The sixth and seventh hills of exceptions were not argued or relied on by the appellants’ counsel, and it is only necessary to say that there was no error in the ruling of the Circuit Court on the questions they present.
The eighth bill of exceptions brings before us for review, the rulings of the Circuit Court upon the prayers, and the instructions which were given to the jury.
There can exist no well grounded objection to the propositions of law contained in the first instruction. It submits to the jury the question whether the deposit of the bonds was made on the terms of the agreement set out in the “ paper, marked A,” and instructs them, upon that hypothesis, as to the whole law of the case. The principles announced oil the instruction are well settled and elementary principles in the law of bailment, and need no argument or authority to be cited in their support.
The only objection to this instruction that was seriously urged by the appellants’ counsel in the argument, was that there was no evidence legally sufficient to be submitted to the jury from which they could find that “paper A” had been
This case was tried below before the new rules of practice, adopted by this Court under the Constitution, went into operation, and, consequently, this objection may be made on this appeal. It is necessary, therefore, to examine it. There is some confusion or conflict in the testimony of the witnesses McNair, Coyle and Maury, with regard to paper A.
Maury, the defendant, was asked the following question :
“Sixth Interrogatory. Do you or do you not know whether at the time of the delivery or deposits of the said United States bonds, or evidences of debt referred to by you in your reply to the preceding interrogatory, by the plaintiff' to the defendants, trading as bankers and brokers as aforesaid, any receipt was given for the same; if yea, state all you know about it; ■ and if you have said receipt produce it before the commissioner?”
To this the witness answered: “ Such a receipt was given, (the witness refers to receipt handed him by commissioner and herewith annexed, marked “A” and heretofore filed.) ”
In the face of this testimony from one of the defendants, it cannot be successfully contended that there was error in submitting the question to the jury. The question of the genuineness of the paper and the time of its actual execution was one for the jury to determine; and whatever conflict of evidence there may have been on that subject was exclusively for their consideration.
The second instruction was based on the hypothesis that the jury might find that the terms of the deposit were.not expressed by paper “A,” and excluding that paper from their consideration, treated the transaction as a simple deposit or bailment, for safe keeping, without reward or compensation, and we think the law governing the case in that aspect, was correctly expounded to the jury.
The counsel for the appellants have argued that there was error in defining the measure of diligence imposed by the law upon the bailees in such case.
In our opinion this was a correct statement of the nature j and extent of the obligation of the defendants as bailees, ' arising from the facts submitted to the jury in the second, instruction. They wore bound to use ordinary diligence in| keeping the deposit, and the language of the instruction was a correct definition of what the law declares is ordinary diligence. Story on Bailments, secs. 11, 15.
Objection was made in the argument to the rule or measure of damages laid down in the Court’s instructions, but we think there was no error in this respect.
Unquestionably, if the jury found under the first instruction for the plaintiff, the measure of his recovery laid down by the Court below was in exact conformity with the contract as evidenced by “ paper A,” whereby the defendants “ promised to return the bonds, or to pay the full value of the same including gold interest.”
So, if the jury found for the plaintiff under the second instruction, the proper measure of damages was as therein stated.
It was suggested in the argument that inasmuch as the interest on the bonds was payable by the United States in gold, the jury ought to have been directed, as to that part of the plaintiff’s claim, to render their verdict payable in gold, so that the judgment might, be rendered thereon accordingly, in conformity with the decision in The Chesapeake Bank vs. Swain & Abell, 29 Md., 483.
To this view we do not assent. It was proper for the jury to render their verdict for the aggregate amount of the plaintiff’s damages ascertained as the Court directed.
The hypothesis of the second instruction was that the relation between the parties was one created by the law regulating bailments or simple deposits, and the defendants’ liability arose from the breach or violation of their duty as bailees. The recovery sought was not of the specific thing deposited, but for damages for its loss; and the true measure was the value of the deposit, and such were the instructions given to the jury. In this respect, therefore, the instructions were right.
By granting the ninth prayer of the defendants the questions were properly submitted to the jury whether “paper A” was executed or delivered on the day of its date, and also whether it truly expressed the terms on which the deposit was made.
By the third instruction given to the jury, the defendants had the benefit of the instruction asked for in their third 'prayer; the refusal of the prayer is therefore no cause for reversal.
It is unnecessary to refer particularly to the other prayers of the defendants which were rejected. As the instructions given to the jury correctly expounded the law, and covered the whole case, there can exist no ground for reversal by reason of the refusal to grant any of the defendants’ jirayers. They were not denied the benefit of any legal proposition before the jury to which they were entitled.
For the reasons stated the judgment will be affirmed.
Judgment affirmed.