Pitlock v. Wells, Fargo & Co.

| Mass. | Mar 15, 1872

Wells, J.

The verdict establishes the fact that the defendants did not receive the package in such manner as to become chargeable as common carriers. The instructions were sufficiently favorable to the plaintiff on that ground; and no objection is made to them here.

In his closing argument to the jury the plaintiff claimed that, if not chargeable as carriers, the defendants were liable as bailees, and might be held in this action, either for money had and received under the second count of his declaration, or in tort in the nature of trover under the third count. The presiding judge refused to allow a verdict to be rendered for the plaintiff on this ground ; and that alone is the question now before us.

Although the verdict negatives a receipt of the package by the defendants as carriers, it does not necessarily negative a deposit of it upon their counter. It is upon the evidence of such a deposit that the plaintiff relies. But the only evidence to prove the fact shows that the package was delivered solely for the purpose of carriage, and entirely fails to show any other contract. The obligations thus imposed upon the defendants, they not receiving it as carriers, would be those of an involuntary or gratuitous bailment.

As there was no evidence tending to show that the defendants appropriated the money to their own use, or ever had possession of it otherwise than as contained in a sealed package, the action cannot be maintained upon the count for “ money had and received.” Foster v. Essex Bank, 17 Mass. 479. Bottom v. Clarke, 7 Cush. 487.

To charge them upon the ground of negligence, something more must be shown affirmatively than that the package could not be found nor accounted for, upon search. Smith v. First National Bank of Westfield, 99 Mass. 605" court="Mass." date_filed="1868-09-15" href="https://app.midpage.ai/document/smith-v-first-national-bank-6415427?utm_source=webapp" opinion_id="6415427">99 Mass. 605.

There being no obligation to transport the package to Boston, or agreement to deliver it there, a non-compliance with the plaintiff’s demand upon the agent of the defendants there would not constitute or prove a conversion. Even if a demand and refusal at Boston would be sufficient, the evidence fails to show such a refusal as would constitute a conversion. The response to the demand was a search for the package, with the result that it was not in the possession of the defendants, and that no trace of it could be discovered. There being no evidence to show this response to be untrue, and none of any conversion in fact before that time, the action cannot ,be maintained in the form of trover. Johnson v. Couillard, 4 Allen, 446. Gilmore v. Newton, 9 Allen, 171. Dwight v. Brewster, 1 Pick. 50.

It follows, inasmuch as the position of the plaintiff, in this aspect of his case, could not be maintained upon the evidence, that he has no reason to complain of the ruling against him, whatever were the grounds upon which that ruling was made.

Exceptions overruled.