58 Tex. 328 | Tex. | 1883
This suit was brought by the defendant in error upon a contract entered into by W. W. Hunter as principal, and 'plaintiffs in error as his sureties, with the postmaster general of the United States, for the transportation of the mail. The .suit was grounded upon the contract; and plaintiff alleged, as a breach,-that one of the mail carriers employed by the defendant Hunter had broken open the mail-bag, and taken out a letter containing $200, which belonged to her, and appropriated the money. This is alleged to have occurred in Polk county.
The plaintiff’s cause of action evidently was the failure of the carrier to deliver, at the proper postoffice, the letter containing the money, whereby it had been lost to her. , But the robbery is averred, perhaps for the purpose of giving the court jurisdiction in Polk county, under the seventh exception contained in the statute, fixing the venue in civil causes. Pasch. Dig., art. 1423. It is extremely doubtful whether the district court of Polk county had jurisdiction, as all the defendants resided in the county of Montgomery.
The robbery of the mail by the carrier was not the act of either of the defendants.
The duty of the carrier as the servant of Hunter was to carry the mail, not to rob it; it could not therefore be said that either of the defendants had committed a crime, an offense or a trespass in Polk county. And if we consider the suit as grounded upon the failure of the carrier to deliver the letter, that was neither a crime nor a trespass, bat a mere default or neglect of duty, and could not give jurisdiction in that county.
But as the sureties only have appealed, and as the case, so far as
There were two motions in arrest of judgment, one by all the defendants, the other by the sureties, the plaintiffs in error. Both were overruled, and these rulings are assigned as error.
The question, then, to be considered is this: Can the plaintiff maintain her action upon this contract as against the sureties? We say “ upon the contract,” because if the sureties are held to answer at all, it must be upon the contract.
In this respect there is quite a difference, as we shall presently see, between them and the principal. The latter may perhaps be answerable to the plaintiff upon considerations of policy outside of the contract, but the obligation of the sureties is strictissimi juris, and does not extend one jot or tittle beyond what is “ nominated in the bond.” Smith v. Montgomery, 3 Tex., 409-10. This doctrine is elementary.
Even in the case of a principal, it has been strenuously denied that such an action as this can be maintained by private parties against a mail contractor for the default óf a mail carrier. See Conwell v. Voorhees, 13 Ohio, 523; Hutchins v. Brackett, 2 Foster, 252.
Those cases treat the mail contractor as a public agent, engaged in the performance of a public service under a contract with the government, and therefore not responsible for the misfeasance or malfeasance of those employed under him. The first of these decisions, however, is questioned in 1st American Leading Oases, p. 621, and both of them are strongly disapproved in a well considered case decided by the court of appeals of Virginia (17 Gratt., 230).
This Virginia case is the sole reliance of defendant in error for the maintenance of the present suit. Whilst it may be said to sanction this proceeding as against Hunter, the principal, it gives no countenance whatever to the suit against the sureties.
That was a suit against a mail contractor for the loss, by one of his carriers, of a valuable letter belonging to the plaintiff. The sureties, however, were not joined as defendants with the principal, and it is evident that they were omitted, not inadvertently, but by design. It was a common law action of trespass on the case, and the court, in the opinion (238), is careful to remark that the suit is not founded on the contract, but on the breach of duty. It proceeds upon the principle that the contractor is not an officer of
The bonds of sheriffs, clerks, etc., seem to be an exception to the general rule; but this is by express statutory provision.
We conclude that as to the plaintiffs in error the judgment should be reversed and the cause dismissed.
The report of the Commissioners of Appeals examined, and their opinion adopted so far as it reverses the cause; but under the authority of the following cases, Dickson v. Burke, 28 Tex., 117; Willie v. Thomas, 22 Tex., 175; Wood v. Smith, 11 Tex., 367, and Burleson v. Henderson, 4 Tex., 49, the judgment below will be reversed as to all the defendants, and the cause remanded.
Reveksed and demanded.
