Ela v. American Merchants' Union Express Co.

Dixok, C. J.

Counsel for the defendant, in their statement of facts, say there was a conflict of testimony as to whether the package was addressed on the outside “ Richard E. Ela, Burlington, Wisconsin,” or “ Richard E. Ela, care of H. E. Carpenter, Burlington, Wisconsin.” An examination of the bill of exceptions shows very clearly that there was considerable testimony of,quite a positive character, tending to prove that the former was the address of the package. The charge of the court is not contained in the bill of exceptions, from which we understand that the instructions were unexceptionable to the defendant. We are merely informed that the court charged the jury. Under these circumstances, we must assume that the court correctly instructed the jury as to the law governing the case, which was, if they should find the first was the true address of the package, that then the defendant was liable forits contents until it was safely delivered to the plaintiff, Mr. Ela ; but if, on the other hand, they should find the latter was the actual address, then the defendant discharged its duty and was relieved from further responsibility, by the delivery to Mr. Carpenter, to whose care the package was addressed, and thereafter the loss, if any, must fall upon the railway company or upon Mr. Ela, according as the relations between those parties should be found to have' existed, and not upon the defendant in this action.

The test of the defendant’s liability in the action was, whether the package was received and held by Caipenter as the agent of the defendant, or as the agent of the railway company, or of 'Mr. Ela. If the former, the defendant was liable; but if the' latter, no matter what the relations between Mr. Ela and the railway company may have been with respect to the money *616 being treated as a payment by tbe company, the moment it was transmitted, the defendant was not liable. Mr. Carpenter wan acting both as the agent of the defendant and of the railway company at the Burlington station. Those agencies were, however, distinct, having no necessary connection with or dependence upon each other. If the first was the address' of the package, then the delivery of it by the express messenger to Mr. Carpenter at Burlington station was a delivery by the defendant to its own chosen agent at that place, to be by him safely kept and delivered to Mr. Ela, to whom it was addressed; and for his failure so to keep and deliver, the defendant was clearly liable. But if, on the contrary, the latter was the mode of address, then the delivery to Mr. Garpenter was a complete delivery so far as the defendant was concerned, and absolved it from all further responsibility. Such delivery was, for that purpose, equivalent to a delivery to Mr. Ela himself. The package being addressed to his care, Mr. Carpenter was thereby constituted the pi’oper person to whom to make delivery. He was the agent selected by the railway company, or, if the fact were so, by Mr. Ela, in order that it might be so delivered ; and, for the purposes of this action, it was immaterial what the fact was as between Mr. Ela and the railway company, so long as he was not acting as the agent of the defendant. The principle upon which the defendant’s liability rested, if liable at all, was therefore plain; and we are bound to assume it was properly explained to the jury, and that they must have found that the first was the true address of the package; and if they did so find, then it is clear that the verdict cannot be disturbed as being unsupported by testimony or against the weight of testimony.

The remaining question is, as to whether the action, in the nature of an action for money had and received, could be maintained. The package was a money package, and contained nothing but money. The bill of lading, or defendant company’s receipt, was not transferred to the plaintiff, and he did not sue upon that contract. He sued merely as the party lawfully *617 entitled to receive tbe package, and for whose nse tbe money-in it was intended. It is objected that privity of contract is necessary to sustain tbe action for. money bad and received; and tbe rule is invoked, that • until tbe bill of lading is delivered, tbe shipper remains tbe owner, and may change tbe direction of tbe property, or that acceptance of tbe property by tbe consignee, or tbe delivery of tbe bill to him, is necessary to transfer tbe title. Tbe latter proposition may in many and perhaps most cases be true; but it is undoubtedly competent for tbe parties to come to a different agreement. If goods consigned be lost or destroyed in transit, so as never to come to tbe bands of tbe consignee, tbe consignor may, if be choose and tbe consignee assents thereto, release bis title or claim to tbe consignee, so that tbe latter may maintain any proper action against tbe carrier to recover tbe value of tbe goods. Such, in substance, appears to have been tbe arrangement here between tbe railway company and tbe plaintiff, Mr. Ela.

And as to tbe other proposition, that privity of contract is necessary to maintain tbe action, it seems to be very well settled by tbe authorities to the contrary. It has long been held that tbe action lies for tbe recovery of money paid under a mistake of facts; or obtained by fraud or compulsion; or extorted by unjust or oppressive proceedings, or deposited upon an illegal wager or illegal contract not executed, or paid upon a consideration which has wholly failed, etc. 1 Cbitty’s, PL, 351, note (z), and authorities cited. It is difficult to perceive any thing like privity of contract in many of tbe above, and other like cases which are to be found. But in tbe following cases it was expressly decided that there need be no privity of contract to support tbe action, except that which results from one man’s having money which of right belongs to another, and which it is against conscience for him to keep. Mason. v. Waite, 17 Mass., 560 : Hall v. Marston, id., 575 ; Dickson v. Cunningham, Ma rt. and Yerg., 203, 221; Eagle Bank v. Smith, 5 Conn., 71 ; Rieur v. Crafts, 12 Johns., 90 ; Grant v. Vaughan, 3 Burr., *618 1525, 1529; Tatlock v. Harris, 3 Tenn., 174 ; Rabourgh v. Peyton, 2 Wheat., 385 ; Boyd v. Logan, Cooke, 394 . See also Claflin v. Godfrey, 21 Pick., 1 ; and Buel v. Baughton, 2 Denio, 91 . Suck was tbe relation which existed between the parties here. The defendant had the package of money, which it was its duty to have delivered to the plaintiff; and the fact that it was taken or converted by the fraud or felony of its servant, can make no difference. The question is the same as if it had been in any other manner unlawfully retained, or as if the defendant had unlawfully taken and disposed of it to its own use. In Mason v. Waite, the action was by one who had delivered bank notes, put up -in a parcel, to a carrier, to be delivered to a third person, but the carrier had paid them to the defendant for a loss at a faro table. It was held that money had and received would lie, and the plaintiff recovered the amount with interest.

By the Comt — Judgment affirmed.