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    Isaac Conwell v. John Voorhees and Peter Voorhees.
    A mail contractor is not liable to the owner of a letter containing money, transmitted, by mail, and lost by the carelessness of the contractor’s agents carrying the mail.
    This was an action on the case, reserved from Hamilton county.
    In the first count, the plaintiff declared as follows:
    For that whereas the said defendants before, and at the time of the delivery of tho money, goods, and chattels, and of the committing of the grievances as hereinafter mentioned, were the owners and proprietors of a certain stage coach passing to, and from Oxford, in the county of Butler, in the State of Ohio, to Cincinnati, in tho county of Hamilton and State of Ohio, for the carriage and conveyance of tho mail of the United States of.America, and of all letters and packages placed therein, for hire and reward received by the said defendants from the said the United States of America, to wit, at the county of Hamilton aforesaid. And whereas, also, whilst the said defendants were such owners and proprietors, to wit, on February 10, 1843, at tho town of Liberty, in the county of Union, in the State of Indiana, to wit, at Hamilton county aforesaid, the said plaintiff placed in the post-office, at Liberty aforesaid, a letter addressed to-, of Cincinnati, inclosing and containing bank notes and bills, of various denominations, amounting to a large sum, to wit, $400, of the value of $400, the property of the plaintiff, to bo carried from thence, by the said *mail, to the said post-office at Cincinnati, to wit, at Hamilton county, to be delivered safely to the said-, for the use of the said plaintiff; and the said letter, package, and bank notes and bills, afterward, to wit, on the same February 10, 1843, at the town of Hamilton, at Butler county, Slate of Ohio aforesaid, in the course of the transit, came to the possession of the said defendants, and were delivered to the said defendants, whilst they, said defendants, were so the proprietors and owners of said mail and stage-coach, and were so carrying said mail, to be conveyed then and there, from said town of Hamilton, in Butler county aforesaid, to the said post-office in Cincinnati, to wit, at said county of Hamilton, and safely and securely to bo delivered, for the said plaintiff, at the said post-office at Cincinnati; yet the defendants, not regarding their duty in that behalf — but contriving, and fraudulently intending, craftily and subtiloly, to deceive, defraud, and injure the said plaintiff in this behalf — did not, nor would safely or securely carry, or convey, the said letter and its contents aforesaid, from the said town of Hamilton, nor there, to wit, at the said post-office at the city of Cincinnati, in Hamilton county aloresaid, safely and securely deliver the same for the said plaintiff; but, on the contrary thereof, they, the said defendants, their agents and servants, so carelessly and negligently behaved and conducted themselves in the premises, that said letter and its contents aloresaid, being of the value aforesaid, then and there became, and were wholly lost to the plaintiff, etc.”
    The second count charges that the letter package, containing $400, belonging to the plaintiff, was put in the mail at Liberty, and came to defendants’ possession at Hamilton, as stage proprie tors and mail contractors, to be saiely delivered; and that the same was lost bj'the neglect and carelessness of defendants, their agents and servants, and by and through the defendants’ negligence.
    The third count charges that the receipt of the package at Hamilton, Butler county, by defendants, to bo safely carried to Cincinnati, and that they undertook to safely carry and deliver *the same at the post-office at Cincinnati, and that a reasonable time had elapsed, and defendants had wholly failed and neglected to deliver the same at Cincinnati, and that by means of the negligence and carelessness of the defendants, their agents and servants, the said package was wholly lost.
    To these three counts, the defendants have filed a general demurrer.

      Storer and Gwynne, for defendants, in support of demurrer:
    We do not deny that in eases of contracts, either expressed or implied, a party may declare on the tort, and set forth that the defendant has neglected his duty. We are aware that actions in assumpsit, and on the case for tort, have been sustained in such cases ; that both forms of action have been brought against common carriers, and that the books furnish precedents of declarations adapted to either form of action. But the authorities and precedents show that assumpsit is the more proper form of action on the facts set forth in the declaration before the court,
    In the case of common carriers, the actions brought have been held to be actions of assumpsit, in Bosson v. Sandford, 2 Show. 478; Dale v. Hall, 1 Wils. 281; Buddie v. Wilson, 6 Term, 369,; Powell v. Layton, 2 Now R. 365; Max v. Roberts, 12 East, 89; S. C., 2 New R. 454; while, in Mitchell v. Tarburt, 5 Term, 649; Dickon v. Clifton, 2 Wils. 319; Butherton v. Wood, 5 Brod. & B. 54; Orange Bank v. Brown, 3 Wend. 158, the actions were considered as actions of tort. So also in Govett v. Radnidge, 3 East, 62, in action for negligently loading a hogshead on a cart; in Samuel v. Judin, 6 East, 333; S. C., 1 New R. 43, in an action for neglecting to get a note discounted for the plaintiff, and in Burnet v. Lynch, 5 B. & C. 589, the counts of the declaration were construed to be in tort, and the action more properly ex delicto.

    It does not seem, however, to be difficult to harmonize all these cases as concurring in the rule expressed by Justice Littledale, *in 5 B. & C. 609. “Assumpsit lies where a party claims damages in consequence of a breach of a promise not under seal. That promise may either be express, or it maybe implied, from a legal obligation to do a particular act. Where there is an express promise, and a legal obligation results from it, then the plaintiff’s cause of action is most accurately described in assumpsit, in which the promise is stated as the gist'of the action. But where, from a given state of facts, the law raises a legal obligation to do a particular act, and there is a breach of that obligation, and a consequential damage; there, although assumpsit maybe maintainable upon a promise implied by law to do the act, still an action on the caso is the more proper iorm of action, in which the plaintiff in his declaration states' the facts out of which the legal obligation arises, the obligation itself, the breach of it, and the damage resulting from that breach.”

      In all the above cases, where the actions have been regarded as torts, the damage stated in the declaration has been one resulting from a default of duty by the defendants, not from a breach of" promise. In those oases whore the defendants were not charged as common carriers, and the action was held to be in tort, the declaration did not give a prominence to promises from which a legal obligation resulted, but to states of facts raising legal obligations to do particular acts, from which, to be sure, there might have been promises implied by law to do the acts. The same remark holds good as to those cases against common carriers, whore the actions were held to bo in tort. In none of the cases did the declaration allege an undertaking. Nor was such allegation necessary, the suit being for a broach of duty, which lies against a common carrier without stating any contract, as “ considerations of public policy, and not agreements between the parties, have ascertained the duties and fixed the liabilities of common carriers.” 3 Wend. 161.
    There is, however, in the case of the common carrier, an implied undertaking to carry the goods safely, and wherever the judges have given a greater attention to this undertaking, *than to the broach of duty, they have decided that the action was assumpsit. Thus, in Buddle v. Wilson, the opinion cited, says: “In the old forms the declaration is, that the defendant suscepit, etc., which shows that it is ex contractu,” and in Powell v. Layton, it is said; “Although the word suscepit does not occur in the declaration, yet (he nature of the charge is, that the defendant agreed to carry the-goods, and has failed in the performance of his agreement. The word ‘ duty’ is introduced. The duty of a carrier I do not understand otherwise than as that duty arises out of contract.” When the declaration expressly alleges an undertaking, there has been no hesitation in deciding the action to be assumpsit. Thus, in Bosson v. Sandford, the declaration averred negligence, and it contained these words, “ and them to transport and carry in form aforesaid, did undertake.”
    Apply to the present case the rule that where the legal obligation results from an express promise, the plaintiff’s cause of action is most accurately described in assumpsit, and it appears to us the conclusion is irresistible that such is the proper description here; for here the purpose, the contract, the undertaking, is the gist of the action.

      The defendant is not a common carrier, innkeeper, porter, ferryman. Nor does he hold any of those peculiar situations in which persons holding them are bound, by law, to do what is required of them within the scope of their employment. Consequently, they are liable for.nonfeasances, and, in the ease of the carrier, the more delivery to him of an article to convey, raises, upon his part, the obligation to convey it. No such duty devolves upon the defendant, nor is he liable for a breach of duty, such as would subject the carrier.
    This is the position we take. • It is denied that it is tenable. The question whether the defendant is chargeable as a commoH. carrier is soon tested by the inquiry, would the defendant, as stage proprietor or common carrier, be liable for the loss of si letter or package containing bank notes or bills of the value of four hundred dollars? The case of Orange County Bank v. Brown, 9 Wend. 85, and of Pardee v. Drew, 25 *Wend. 460, authorize us to say the defendant would not; and 10 Ohio, 145, goes no further than to make the common carrier liable for the necessary appendages of the traveler. Besides this consideration of the amount of money, it is not pretended that it is any part of the duty of the stage proprietor to carry letters. He might, by so doing, subject himself to prosecution for infringing the post-office laws. By virtue of what, then, is the defendant chargeable ? Either by virtue of his being employed in a department of the general post-office, or by virtue of his promise and contract with-the post-office department to convey letters. We say he is the former, and, if so, he is not responsible. The only ground of his liabilityr, then, is his contract, and the proper action, consequently, is assumpsit. No doubt can be entertained that the third count in the declaration is framed in assumpsit. It does not allege that the defendant is mail carrier or common carrier, nor does it give any description of his employment. It alleges an undertaking, as in Bosson v. Sandford, and 6 B. & C. 268.
    That the suit should be in assumpsit, as this third count actually is, appears evident from the case of Cobbett v. Packington, 6 B. & C. 268. There, as here, it was said in argument, “ as the party had merely agreed to do that which was a common law duty, it was unnecessary to resort to the promise, and it might be rejected, and the count still be considered as in tort.” But, as a count in tort, it was still held it was bad ; for, said Bittledalo, J., in that case the whole of the defendant’s duty would have been to take care of the pigs. So, hero the common law duty of the defendant was only to take care of the letter or package, if it was intrusted to him. The duty to convoy it arose only from his being employed in the carrying department of the post-office, or from his having contracted. If the former, we again repeat, he is exonerated from liability. If the latter merely, the action is assumpsit, the promise being the gist of the action.
    The third count alleges no reward. It is clearly defective. The first and second do not allege a reward sufficient to maintain, in law, an action of assumpsit. None allege an Gentry upon the performance of the agreement, which is essential, both in assumpsit and in actions for tort. And what is fatal to the action, being, as we have shown, in fact, an action of assumpsit, there is no “privity of contract” between the plaintiff and defendant.
    It is said that this court has repudiated the doctrine of tho non-liability of public functionaries for the misfeasances of their agents and servants, and 4 Ohio, 514, 7 Ohio 21, and 10 Ohio 160, are cited. We do not understand that those cases repudiate this doctrine. The defendant held liable in any of those cases was the public itself — the city of Cleveland, or of Cincinnati — not a public functionary.
    It is said that the English cases, respecting the postmaster-general, are inapplicable, for tho statute of 12 Car. 1, expressly exempts the postmaster-general from all liability: We answer that was not the reason of the decisions.
    It is further argued that the driver is the private servant of the contractor. If he be such, ho should be entirely under the control of the contractor, and there would be no ground upon which a law of the United States could claim the rights which it does assert over him. Who ever heard of a private servant of an individual being bound by an oath, as is the mail-driver, under the law? Upon what foundation, if he be the private servant of tho contractor, rests the declaration of the law, that he shall be a freo while person, that he shall be exempt from militia duty, and serving on juries, and that ho shall be subject to the pains and penalties of the law, and shall be bound to obey the instructions of the postmaster-general? By what authority can the postmaster-general interfere with the oxercise of the power to discharge the driver and annul the contract, in case of refusal to dismiss him on request, if the driver be the private servant, merely, of the contractor ?
    The provisions of the law referred to in those questions, show that the driver and contractor are in the employ of the post-office department.
    If such bo the ease, the defendant is not responsible, for he is an agent merely, retaining the driver for the service of the post--office department. In such a case the action must be brought either against the principal or the hand committing the injury. Stone v. Cartwright, 6 Term, 412; Story on Agency, 313.
    The mail-driver is not the less a servant of the post-office department by reason of the facts adverted to, that the defendant has a contract with the department — that he originally employs, and has a qualified control over, and the payment of, the persons employed in carrying the mail. In Bush v. Steinman, 1 Bos. & Pul. 404, the owner of a house had contracted with a surveyor to repair it for a fixed sum. There were several subcontracts, and one of the workmen of the person last employed put some line on the road, in consequence of which the carriage of the plaintiff was overturned, and it was held that the owner of the house was liable. In Sly v. Edgely, 6 Esp. 6, a person had employed a bricklayer to make a sewer, who left it open, in consequence of which the plaintiff fell in and broke his leg. The person who employed the bricklayer was held liable. The case of Laugher v. Pointer, 5 B. & C. 547, is not authoritative as a decision, as the judges were there equally divided in opinion. And the present case is much stronger than that one. There the defendant hired the coachman and horses of the jobman for a day only. The coachman was not regularly employed in the business of the defendant — was not sworn to attend to it aright. The defendant had no control over his appointment, and except, for the day, had no right to give him instructions. Further, the defendant there could not pretend to any authority to remove the coachman entirely from the employment of the jobman. It will be perceived that the opinions of the judges, who held that the defendant was not liable, do not reach a state of case like the present.
    In Lowell v. Boston and Lowell Railroad Corporation, 23 Pick. 31, the question arose whether the person from whose act the injury complained of accrued, was the servant of the defendant, and it was held be was. The court say : “ But the-dofcndants deny their responsibility for the negligence of the ^persons employed in the construction of that part of the railroad where the accident happened, because this section thereof had been lot out to one Eoonan, who bad contracted to make the same for a stipulated sum, and who employed the workmen. We do not see, however, that this circumstance relieves the defendants from their responsibility. The work was done for their benefit, under their authority, and by their direction. They are, therefore, to be regarded as the principals, and it is immaterial whether the work was done under contract for a stipulated sum, or by workmen employed ‘directly by the defendants, at day wages. This question was very fully discussed and settled in the case of Bush v. Steinman, 1 Bos. & Pul. 403. This decision is fully supported by the authorities cited, and by well-established principles.” This authority is conclusive. The mail-driver acts for the benefit, under the authority and the instructions of the postmaster general.
    Morris & Rairden, for plaintiff, contra:
    This demurrer raises two questions for the consideration of the court, viz:
    1. Is the defendant liable, as carrier of the mail, for loss of money out of the mail-bags, occasioned by his own negligence ?
    2. Is he, as carrier and contractor, liable for the negligence of his servants and agents ?
    All the counts demurred to, allege the loss to have been ocea> sioned by the negligence and careless conduct of the defendants, their agents and servants, and, of course, involve the question directly of the liability of the defendants for the misconduct of their servants and drivers.
    This question has not, so far as our researches have enabled us to determine, ever been raised in the United States directly, upon the point made in this case.
    The present is, therefore, a case of first impression, arising under the act of Congress for the establishment of the post-office.
    *There are only two cases that bear any analogy to the present found in the English books, and these are decisions made in reference to the liability of postmasters for the misfeasance of their deputies, viz: that of Lane v. Cotton, Lord Raymond, 646, decided in the time of Chief Justice Holt: and that of Whitfield v. Lord De Spencer, Cowp. 754, decided by Lord Chief Justice Mansfield. The correctness of these decisions may not only be questioned, but it will be found that they differ wholly in principle from the question now before the court.
    In England, by the statute of 9 Ann, for erecting a general post-office, a postmaster-general is appointed by patent, who is required to appoint inferior officers, clerks, sorters, etc. All inferior officers are appointed in the king’s name, give security to, and are appointed by the receiver-general, and not by the postmaster-general, who is expressly exempted by the acts from all responsibility for the'officers appointed, being only made liable for his own voluntary defaults and misfeasances. - The inferior officers are, therefore, the officers, servants, and agents of the government only.
    In the case of Lane v. Cotton, Lord Holt dissented from the rest of the court, who determined against the liability of the postmaster-general for the misfeasance of the deputy, and, in an opinion of great ability, decided that the postmaster-general was liable for the misfeasance of his deputy ; and the opinion of Holt has been deemed, by able writers, to be the better opinion. Jones’ Law of Bailment, 110.
    The case in Cowper, 754, determines that, in England, the postmaster is not liable to an action for the misfeasance of his subordinates, as ho is a sworn officer of the crown, and all his subordinates are also sworn officers of the crown, acting in their respective spheres, under law.
    "Upon the authority of these English eases, there have been several cases decided in the United States, in reference to the liability of the postmaster-general of the United States for his subordinates, and of postmasters for their deputies.
    *The leading case is that of Dunlap v. Munroe, 7 Cranch, 242. This was an action brought to recover of Thomas Munroe, postmaster at Washington City, the value of a package of money, inclosed in a letter, and alleged to have been lost by the negligence of the defendant’s servants, agents, etc., in his office.
    This case was decided upon exceptions taken on the trial, and two questions were presented to the court: 1. Whether the postmaster was liable for his own negligence. 2. Whether he was liable for the negligence of his assistants. Upon the first the court decided that he was liable; upon the second, that he would be only liable for the result of hi,s own neglect, in not properly superintending the discharge of the duties of his assistants in his office. But the court did not decide the second point further, as the pleadings did not properly present it, and the ease went off on other points raised.
    ■ The next is the case of Franklin^. Low and Wartoul, 3 Johns. 396. This was an action ior money had and received, and carno before the Supremo Court of New York upon an agreed state of facts. This suit was brought to recover of the defendants, as executors of Bauman, formerly postmaster at the city of New York, for the sum of $800, belonging to plaintiff, embezzled by a clerk in the post-office, under Bauman, from a letter in the post-office.
    The majority of the court in that case expressly declined giving any opinion upon the main question, whether the postmaster would be liable for the misfeasance of his deputy, and determined that the action could not be maintained against the representatives of the deceased postmaster. Livingston, J., who delivered a separate opinion in this case, hold that, in the United States, the postmaster was liable for the fidelity of his assistants and agents, and that the rule is just and reasonable, and shows conclusively the distinction between the liabilities of the postmaster in this country, and in England, for the acts of their subordinates. This very able judge says : “ It is highly reasonable that the postmaster should bo liable for the fidelity of his agents, for such liability will greatly increase the ^security of the public, not only in preventing collusion between the principals and their servants, ■but by rendering the former more circumspect in their choice, more watchful over their clerks, and particularly more attentive in taking bonds for their faithful conduct. It may, indeed, fall hard, it is true, now and then, on a postmaster, but it is better it should be so than that individuals should be without remedy for injuries committed by their agents.”
    These cases, in our humble opinion, do not settle the rule in this1 country against the liability of a postmaster for the misfeasance of his assistants or. agents. But if they did, they certainly have no appl Ration to the question now before the court, except by remote analogy.
    We claim that, on principle, there is nothing to distinguish the defendant, as a mail contractor and carrier from a common carrier. The defendant, as contractor to -carry the mail, is not an 'officer of the government. He is.simply a contracting party, bound to comply with the terms of his contract. Ho has no deputies or assistants. All his servants, agents, and drivors are employed, by himself, paid by himself, and dismissed at his own pleasure.. They are under his exclusive control and direction, and it is within his discretion whether he will employ knaves or honest men. The government has no. control, by law, over any of the subordinates, servants, or agents of the contractor. It is said, however, that a rule of the post-office department requires that the drivers of the stage, carrying the mail, should be sworn to discharge the duties faithfully. If this is so, it will not change the relations between the driver and contractor in any respect; the driver still remains, to all intents, the private servant of the mail contractor, and subject to his order and control. .
    How important is it, then, for the public welfare that the contractor, to carry the mail, should be held to a strict responsibility for those in his employ, for if, as is claimed, he is not responsible, then the whole of the funds transmitted through the mail, in the United States, are at the mercy of irresponsible servants of the contractors, who have, consequently, no ^interest or inducement to use any caution in making selections of honest men to act under them.
    The contractor enters into the employment of the government Voluntarily, knowing the responsibility he incurs, and is no more an officer of the government than any other person who makes a contract with the government to do work, or perform a job, or furnish supplies to the army or navy, or to do any other acts of special service; and all his drivers are more private servants, subject to his own selection, control, and dismissal, at pleasure, without any power to interfere on the part of the government; and there is nothing in the nature of the duties of the contractor, or his relations to his agents and servants, that should distinguish his responsibilities from those of a common carrier.
    This court decided, in Jones v. Vorhees et al., 10 Ohio, 145, that the proprietor of a stage-coach is a common carrier, and liable for a watch lost in -the transit; and that he can not limit his liability by actual notice that the baggage is at the risk of tho owners. An attempt is made, however, by defendant’s counsel, to distinguish the responsibility of the stage proprietor for the articles carried in the mail-bags from ordinary baggage of passengers, and that, too. solely on the ground that the stage proprietor does not receive a specific remuneration for the risk he incurs, and has no notice of tho amount of his risk.
    To this we answer, that tho undertaking is voluntary to carry the mail, and all the articles that shall be sent in the same, safely; and tho law imposes on him the obligation to use all due diligence in the performance of that duty; and the mode in which hois paid does not change the principio upon which his responsibility rests. The government pays the stage proprietor for carrying the mail and all tho packages in it, and the government receives its pay from the parties sending or receiving the packages, etc. What is there, then, either in public policy or the nature of the employment, that should exempt the stage proprietor from the consequences of his own and his servant’s misfeasances in the performance of those duties.
    *Wo deny that, upon-authority, any contract is necessary to charge tho defendants; but it is like the cases where, by course of law, an officer receives goods for tho benefit of others, he is obliged to keep them safely, so that they may have the benefit of them. The plaintiff pays a premium, which entitles him to a remedy against the party by whose negligence he suffers. The defendants receive their pay, under their contract, from the profits of-the post-office department, which is sufficient to create the liability. Ld. Raym. 220, 652; 1 Ventr. 190, 238.
    Where a man takes upon himself a public employment, he is bound to serve that public as far as his employment is concerned, and is liable to an action to any one injured by his misfeasance. Ld. Raym. 654.
    It is claimed that the servant himself would be liable to the plaintiff; but the performance of the duty was manageable only by the defendant and his servants, and what is done by the servant is done by the principal. Ld. Raym. 656.
    The action against the carriers is joint and several, and may be said to be an action ex delicto, quasi ex contractu. 3 Wend. 158; 9 Wend. 85.
    A stage-driver is a servant, intrusted with money, within the meaning of tho law of embezzlement. 10 Wend. 299,
    It is claimed by defendants that there is no averment in the declaration of a contract between plaintiff and ' defendants, or consideration paid to the defendants by plaintiff.
    The averment of consideration in the declaration connected with duty imposed by law on the defendants, raised the obligation, on their part, to carry safely and with due care all articles that should come to their possession as mail carriers, and sustains the implied contract charged in the declaration; and the case cited by defendants’ counsel, in 10 Mees. & Wclsby, 113, is not an authority against the plaintiff, and bears no analogy to the present case. That was a caso of a special contract with the postmaster-general to furnish good carriages, and a suit brought by. a driver. The court said the suit could not be sustained for want of privity of contract. There the suit *was upon the contract; here the contract of the defendant with the government, is alleged only by way of inducement. For any failure to comply with the terms of the contract made with the government, we grant no person could sue for the breach by the government; and the same may be said of all official bonds and contracts to the government or state authorities; and yet all these officers would be liable for an injury, under their offices and contracts, irrespective of the bonds and contracts.
    The defendants’ counsel claim that persons in public employment are not responsible, individually, for contracts made in their public capacity. This is only true, where, by the contract, the public officer discloses the capacity in which he acts, and by it binds his principal or the government; and all the authorities cited by the defendants’ counsel are based upon those principles. Where credit is given to the government, through its officers, the party contracting must look only to the party to whom the credit was given; but the public agent may make himself individually liable if the contract is not s.o framed as to charge the government; and it is difficult to find the force of the reason of the introduction' of this argument by counsel.
    It is claimed by defendants that persons and officers in the public employ are not responsible for the misfeasances of those in their employ, and Hall v. Smith, 2 Bing. 156, is cited to sustain the position. This case does not, however, sustain the defendants on that point. The suit in that case was for an act done by the servants out of the line of their duty, and not for misfeasance within the scope of the duty imposed upon them.
    The English cases cited by defendants’ counsel, we have before shown, have no application to the present case, because they were determined upon the statute of 12 Car. 2, which expressly exempts the postmaster-general from all liability for the acts of his subordinates in office. Ld. Raym. 647. And the decisions in this country, cited by defendants’ counsel, *made upon the authority of tho English cases, can not, even by way of analogy, bo of more binding force.
    It will bo found that this court has repudiated this doctrine of tho non-liab.ility of public functionaries for the misfeasances of their agents and servants. Tho case of Rhodes v. City of Cleveland, 10 Ohio, 160, was an action against the defendants, as a corporation, for an injury done to the plaintiff’s land by cutting ditches and water-courses, by defendants’ servants, in such a manner as to cause the water to overflow-and wash away the plaintiff’s land ; and the court held the defendants liable, and said: “If an individual, in exercising his lawful powers, commit an in> jury, the action in the case is the familiar remedy. If a corporation, acting within the scope of its authority, should work wrong to another, tho same principle of ethics demands of them to repair it.” This court held the city of Cincinnati liable for an injury done illegally or maliciously, by grading the streets, 4 Ohio, 514; and where they transcended their legal powers, 7 Ohio, 21. Tho agents of a corporation were held not responsible where they acted strictly within their power and jurisdiction; and so also in 8 Ohio, 543, the same principle is settled. In these decisions the court admit that they carry the doctrine beyond all the adjudicated cases; bu.t they felt- that they were sustained by acknowledged principles. 10 Ohio, 161.
    Admitting, for the argument, the law to be settled, that the postmaster-general and his assistants, in this country, under the ■laws of the United States, are not responsible in actions for the misconduct of their subordinates, still the principles governing that branch of the department are clearly distinguishable from tho present case.
    Tho postmaster-general is an officer of the government, with specific duties to perform, prescribed by law; and all the postmasters appointed by him become commissicned officers'; and these assistant postmasters and clerks are also recognized by law as officers of tho department; and the act of March 3, 1825, provides that the postmaster-general “ shall give his assistants, the postmasters, and all other persons whom he *shatl employ, or who may be employed in any of the departments of the general post-office, instructions relative to their duties.” 3 Story’s United States Laws, 1985. So that it will be seen that each postmaster, and each of his assistant postmasters and clerks, arc made officers of the department, subject to the special instructions severally given to them from the postmaster-general, and each becomes charged with separate duties independent of the contract of the others; and the general duty is imposed on the postmaster-•general to give them, respectively, instructions according to their duties, and who ceases to have any further special control as to these duties, the discharge of them respectively, and they each consequently become separately responsible for a failure in the discharge of these duties.
    This is not the position of the contractor with the government to carry the mail. Ho receives no commission, is not án officer of the government, is bound only to comply with the terms of his contract, and is liable to the government for a breach of the contract; has a right to select his own .servants, riders, and drivers, who are peculiarly under his own control and direction, and ho, at'his peril, must select faithful and honest men, or he stands responsible for th'o consequences. Neither the government nor the public have any control or power over his discretion in this respect; he employs and dismisses them at his pleasure, and pays wages upon his own agreements. There is nothing, therefore, in the nature of his ■ engagements and relations, or principles, to distinguish him from a common carrier as to his responsibilities. Shall the contractor, then, with these enormous powers for evil, be permitted to shield himself behind the doctrines of the defendant’s counsel of non-responsibility for his servants? Let this principle be promulgated in this country as the law of the land, and nothing would be sale that has value attached to it, passing through the mail-bags of the country. All inducement to caution and vigilance would be taken away from the mail contractors in the selection of their servants and the management of their duties. The whole of the money of the country passing ^through the mail would be subject to the rapacity of irresponsible servants employed by the contractors.
    To hold the contractor responsible as a common carrier would, occasionally, operate as a hardship; but it is the only mode presenting itself to the mind to avoid the evils on the other side and make the post-office department what it ought, and was intended to be, a safe, speedy means of transmitting funds between remote points in the country.
    It is claimed by the defendants’ counsel that the action can not be maintained on the case made in the declaration, as there is no consideration alleged as paid directly to the defendants, and cite Coggs v. Bernard, 2 Ld. Raym. 918; 2 Kent’s Com. 570; and several other authorities to the same point. These authorities establish the rule that if a party undertakes to perform work with-' out consideration, and does not proceed on the work, no action will lie; but these authorities expressly except from the rule common carriers, innkeepers, porters, ferrymen, farriers, or like situations of public employment, and the rule is only made to apply to gratuitous undertakings.
    The rule is, however, well settled that wherever a party charged by law with a public duty, discharges that duty improperly, or fails to comply with the obligations imposed by law by which another sustains an injury, he is liable to an action in the case for the injury sustained. 2 Stephens’ N. P. 1007.
    In 5 Barn. & Cress. 609, Justice Uittlcdalo lays down the rule that, “ wherever, from a given state of facts, the law raises a legal obligation to do a particular act, and there is a breach of the obligation and consequential damage, an action on the case founded on a tort is the proper form of action in which the plaintiff, in his declaration, states the facts out of which the legal obligation arises, the obligation itself, the breach of it, and the damage resulting from that breach. For that is the most accurate description of the real cause of action, and that form of action in which the real causo of action is most accurately described, is the best adapted to every case.”
    *The declaration in the present case comes clearly within the rule laid down. The declaration in each of the three counts before the court, charges the defendants in their capacity of mail carriers — that, as such, the package came to their possession, and that by their own and their servant’s default the same was lost. It is wholly unnecessary to charge any other consideration than the obligation imposed by the law.
    And such is the rule, determined (10 Pick. 505) in an action against a bank for a refusal to deliver to the owner a certificate of stock. So against a public officer for refusing plaintiff’s vote at a town meeting. 7 Gfreenl. 441. So against one who suffered a slave to escape. 6 Gill & Johns. 291. Against an officer for escape. 1 Wend. 462. And it makes no difference in the rule whether the duty imposed be a common law or statutory duty, the action is maintainable on the grounds of misconduct of the party on whom the duty is imjDOsed by which an injury is sustained.
   Read, J.

As to the form of the declaration and the joinder of counts, we regard it sufficient.

The defendants are sought to be made liable, as contractors to carry the mail of the United States, for the loss of a package containing bank bills coming into their possession for transportation as such contractors, i-esulting from their own negligence and misfeasance, and that of their servants and agents.

Misfeasance and negligence are set forth as the ground of recovery in all the counts.

To charge a mandatory for misfeasance and negligence, no other consideration need be set forth than an .acceptance of the trust and an entry upon its performance.

A general demurrer was filed to the declaration to raise this question : Whether a contractor for the transportation of the mail is responsible for a loss of money out of the mail-bags, resulting from his own negligence or from the negligence of his agents'or servants.

It is conceded in this case that if the mail contractor is not liable for losses of money occasioned by the negligence or *carclessness of the mail drivers, that the defendants, in this case, are not responsible, and judgment must be entered in their favor.

The determination of this case depends upon the fact whether a mail contractor is regarded in law as a common carrier or a public agent. If as a common carrier, the plaintiff has made out his case.

The package of bank bills in this case came into the possession ef defendants as mail contractors, and the duty of transportation resulted from that capacity.

Common carriers are persons who carry for hire their obligation is only to the person with whom they have contracted to carry. Their duties and responsibilities arise irom foe and reward, and they are liable only to persons in privity of contract. A mail carrier has no contract with those who transmit articles by the public mail; he receives no fee or reward from them. His contract is with the government of the United States, for tho performance of acts in execution of a public function. Ho is remunerated by the government. The duty he takes upon himself by the contract he is sworn to perform. He acts, for the general government in the performance of a function which the government is charged to have executed. So far, then, as the transmission of the mail is concerned, a mail contractor is a public agent, and, as such, only responsible.

The rules applicable to public and private agencies are different. All agents, of whatever character, are responsible for all acts of misfeasance and willful wrong. Private agents are not responsible to the pai’ty injured for his acts of mere negligence or omission, but his principal only. Public agents are regarded as principals, for tho purpose of responsibility, and are liable to all persons injured by their negligence or omission, as well as by their acts of misfeasance. If this were not the case, the injured party would be without redress, as the government can not be presumed to indemnify tho public at large against the wrongful and negligent acts of subordinate officers or agents. Story on Agency, 321.

*But public agents, although in one sense treated as principals, are not responsible for the omissions, negligence, or misfeasance of those employed under them, if they have employed trustworthy persons of suitable skill and ability, and have not cooperated in the wrong.

Hence the defendants, being public agents, they are not responsible for the loss accruing by the negligence or misfeasance of tho drivers; and although they are responsible, for their own acts, and the declaration therefore good upon demurrer, yet as it was agreed that the defendants should have judgment if not responsible for the acts of the drivers, judgment is rendered in their favor.

Judgment for defendants.


source: Caselaw Access Project

author: Lane, C. J.

license: Public Domain

text:
    John Dawson and others v. James N. Lawrence and others.
    Where tenants in common make a partition, and each sells to purchasers, and the partiiion becomes void in consequence of a failure of title from one of the parties to the partition, the purchasers from the tenant in common, whose title is good, may rightly protect their separate interests under the void partition, if it can be done consistently with the entire preservation of the rights of the successful claimant.
    Where tenants in common execute deeds of bargain, sale and release, for the consideration of an agreement for partition, and one dollar, they inure as deeds of partition only
    This is a bill in chancery, reserved from Knox county.
    The bill asks relief on the following case :
    Smith and .Houston were in possession of 1,800 acres of land, claiming as of fee. In 1817, Houston made his deed to Smith, by which, after reciting their ownership in common of the land (which he enumerates by lots), of which one-third belonged to Smith and two-thirds to himself, which they had agreed to divide, he, therefore, “ in consideration of the above-mentioned agreement, and for the sum of one dollar *fco him in hand paid, hath bargained, sold, remised, released, and quitclaimed to Smith, his heirs,” etc., certain of the lots of land, “to have and to hold to him, and his heirs and assigns, forever.” Smith, at the same time, made to Houston a corresponding deed.
    .Both Smith and Houston have sold their respective parts of this land to purchasers, in separate lots, who hold possession, and have made improvements.
    Lawrence has lately established his right to 15-32 of the whole tract, by reason of a defect of part of Houston’s title. Lawrence’s Lessee v. McArter, 10 Ohio, 37.
    This bill is brought by the several purchasers of the lots once owned by Smith, against Lawrence, and the purchasers from Houston, and all other parties in interest, asking partition and general relief. They specially pray:
    3. A decree declaring that Smith’s interest in the tract may attach to the lots which they hold from him.
    2. To apart the land which Lawrence recovered from Houston, ón the share which was assigned to Houston, in the division with Smith.
    3. Or, if the court should hold that the interest recovered by Lawrence covers a part of each lot; that the several contracts of purchase, heretofore made by the plaintiffs with Smith, may bo so reformed that they may, collectively, hold Smith’s interest at large in the whole tract.
    To this bill all the claimants under Houston demur. Lawrence and Sayer answer, denying notice. Smith, who is made a defendant, answers in favor of complainants.
    Delano and H. B. Curtis, in support of the demurrer, cited 2 Bl. 324; Alnatt on Partition, 124; 2 Hill. Abr. 311; Ib. 365; 2 Thos. Coke, 446; Lindsey v. Coate, 1 Ohio, 243; 2 Bl. Com. 324; White v. Sayer, 2 Ohio, 113; Treon’s Lessee v. Emerick, 6 Ohio, 391; Dennison v. Foster, 9 Ib. 124; 1 Story’s Eq. 75; Ib. 178.
    *H. Curtis and Goddard & Convers, for complainants,
    cited Sneed’s Heirs v. Atherton, 6 Dana, 281; Cates v. Woodson, 2 Ib. 458; Bates v. Thornberry, 5 Ib. 10; Swan v. Swan, 8 Price, 518; Bradley v. Fuller, 23 Pick. 1; 7 Ld. Raym. 235; 1 Story’s Eq. 159; Swift v. Roberts, 3 Burr. 1490; Whaley v. Dawson, 2 Sch. & Lef. 372; Hamilton v. Rayse, Ib. 315; Cuyler v. Bradt, 2 Caine’s Cases, 326; Porter v. Hill, 9 Mass. 34; Bartlett v. Hudson, 12 Ib. 348; Mitchell v. Hasen, 4 Conn. 495; Griswold v. Johnson, 5 Ib. 363; Jewett v. Stockton, 3 Yerger, 492; Mussey v. Sanborn, 15 Mass. 155; Young v. Cooper, 3 Johns. Ch. 295.
   Lane, C. J.

The partition having been made by one not the legal owner is'void, and the land is now held by the several parties to this Buit in common, but with various interests.

As the purchaser, from a tenant in common, takes such interest as the vendor can sell, within the limits of the tract sold, which he holds in common with the other owners, this bill, regarded as a mere bill for partition, can not be sustained on account of multifariousness, as the complainants hold in separate lots, without privity. 2 Ohio, 110; 6 Ohio, 391; 7 Ohio, 129, pt. 2; 9 Ohio, 126.

But the present bill assumes the principle that where separate interests have been acquired under au erroneous partition, chancery will exercise jurisdiction to bring all parties before the court, and, while it preserves all substantial rights, will so mold them, in making a new division of the lands, as to impose burdens where, in equity, they ought to fall, and thus diminish, as far as practicable, the evils of previous errors.

The parties are here all before us. The classes of interests are the vendors, Smith and Houston ; Lawrence, the successful recoverer from Houston of a part of his title; the purchasers from Smith; the purchasers from Houston. Let us look at the equities between these classes:

*1. As between Smith, or the purchasers from Smith and Houston, it is clear that the latter should bear the whole loss, for it occurred by the failure of his title.

2. As between the purchasers from Smith and the purchasers from Houston, the equities are more complicated. If Houston’s purchasers take his title only, they stand in his place, and are bound by what binds him. But they seek, with much ingenuity, to grasp an equity as meritorious as that of the proper purchasers from Smith, from the peculiar form which Smith and Houston adopted in their division.

That form consisted in mutual deeds of bargain, sale, and release for a consideration in money. They thence insist that this was not a simple extinguishment of interest, like a deed of partition or a mere release, but a positive, affirmative conveyance, by which Smith sold- a part of his land to Houston, and Houston sold a part of his land to Smith ; so that each purchaser from Houston may trace a part of his title to Smith, and each purchaser from Smith can trace a part of his title to Houston; and, consequently, the condition of each purchaser, deriving his title from the same source, is equally meritofious.

"We can not admit this to be the true interpretation of this transaction. The parties did not intend to acquire new rights, but to regulate the manner in which subsisting rights were to be enjoyed. Smith did not contemplate acquiring any title from Houston, nor to communicate to him any of his own, nor to share with Houston, nor with Houston’s grantees, the benefits of warranties from his own grantors. But a simple partition, by release, was all the parties meant, as they specified in the recital, and no one is liable to be misled by the nominal money consideration, or by the use of the words “bargain and sale” in this connection. The parties to these deeds lost nothing, and acquired nothing except defined boundaries to the land they previously hold in common; The purchasers from Houston, therefore, are not authorized to rely upon this act as anything except a partition — defining boundaries, but conferring no title. They derive from Houston alone, and must bo content with rights subordinate to 'such equities as the purchasers *from Smith may exact from him. They have no just ground of complaint, if the whole burden of Lawrence’s recovery should fall upon their portion of the land.

Wo do not regard the case of Dennison v. Foster, 9 Ohio, 126, as controlling this. It places on the same footing the earlier and later purchasers from the same grantor, but it touches no relation between purchasers from different vendors.

3. We are, then, led to the equities between Lawrence and the purchasers from Smith. He is not bound by the partition; as to him, it is void; and he may rightfully exact from them land of equal quality, and of equal proportional valuó, with theirs. His rights are, in every sense, equal, but not superior; and where that equality can be fully preserved, they involve no privilege for satisfying bis claim in one locality rather than another.

If a tenant in common, acting in entire good faith, has been led to appropriate his land, and make improvements, he ought to be protected in equity, if it can be done consistently with the entire preservation of bis co-tenant’s rights. No such right should be conceded to one who officiously, or even thoughtlessly, and without due caution, asserts his separate interests; but ho'is surely well entitled to such protection, who lias -sought nothing but his own, and who has been led by accident or mistake, but without fault, into such premature appropriation.

Such appears to us to be the position of the complainants. Purchasers from Smith, for valuable consideration, they may sot up all his equities; they may equitably cast the burden of this recovery upon Houston, and those who hold his title; and they may demand of Lawrence to accept such land as has been previously aparted to those from whom he has reclaimed it, provided he can there find full satisfaction for all his rightful claims.

These ends, however, can only be reached through a suit in chancery, where jurisdiction, in cases like the ¡^resent, is abundantly justified by precedents. 1 Story’s Eq. 647, and seq.; 7 Ohio, 132, pt. 2. The analogy is ^strong between the interposition of the court in this case, and the powers they exercise in marshaling assets, or in the adjustment of liens and priorities between different creditors, or successive purchasers, or mortgagees, or in a suit by the alienees of land subject to dower, to assign to the dowress the land of the heir.

The demurrer must be overruled, and the cause continued for answer. Demurrer overruled.


text:
    Obed Smith, by his next friend, v. Richard Pratt and Josiah Barber.
    Proceedings of courts of record, although not after the course of the common law, may be reviewed by writs of error, as well as by certiorari, in Ohio.

      A partition of land, consisting of - several tracts, made 'by petition under the statute, is erroneous where the petitioner is not a tenant in common with all the owners of each tract.
    Such error may be assigned as an error in fact.
    This was a writ of error to the common pleas, reserved from the county ot Medina.
    This record has once been before this court, and the facts are fully set forth in the report of the case of Smith v. Barber et al., 7 Ohio, 118, pt. 2. It was there holden not to be an error in law to set out to a petitioner in partition his whole interest in one of two tracts, of which partition is sought, unless it appear from the record that the tracts are owned by different co-tenants.
    The present plaintiff in error, one of the heirs of Obed Smith, deceased, but not a party to the former writ of error, after assigning that certain tenants by name held different proportions in the two tracts, sets out as a cause of reversal, that, at the time of making partition, the heirs of Obed Smith owned *three hundred acres in township number two, in the eighteenth range, and nono in tract number four, in the nineteenth range, which had been annexed to township number two; that there is not sufficient land left undivided in the township to satisfy this claim, but that undivided land yet remains in the tract, beyond the unsatisfied claims.

      Allen & Stetson, for plaintiff in error, cited :
    Ewing v. Hollister, 7 Ohio, 138, pt. 2; Walpole’s Lessee v. Ink, 9 Ib. 142; Winn v. The State, 10 Ib. 345; Prentiss’ case, 7 Ib. 130, pt. 2; Smith v. Barber, 7 Ib. 118, pt. 2; Walworth v. Walworth, Wright, 673; Clapp v. Bromaghan, 9 Cow. 304.
    Clark & Olnet, and S. J. Andrews, for defendants, relied upon :
    Hartshorn v. Wilson, 2 Ohio, 27; Bascomb v. Bascomb, 7 Ib 125; Lessee of Glover’s Heirs v. Ruffin, 6 Ib. 113; Ball v. Brigham, 5 Mass. 406; Cook v. Allen, 2 Ib. 462; Price v. Oliver, 13 Ib. 211; Drowne v. Stimpson, 2 Ib. 441; Vandusen v. Comstock, 3 Ib. 184 ; Winslow v. Anderson, 4 Ib. 376; 1 Swift’s Dig. 789; Tidd’s Pr. 1051; 2 Saund. 101; Weston’s case, 11 Mass. 417; Commonwealth v. Ellis, Ib. 465; Melvin v. Bridge, 3 Ib. 305; Edgar v. Dodge, 4 Ib. 670; Miller’s case, Ib. 565; Commonwealth v. Blue Hill Turnpike Co., 5 Ib. 420; Lees v. Childs, 17 Ib. 351; Adams’ case, 4 Pick. 25; Nightingale’s case, 11 Ib. 198; Independence v. Pompton, 4 Halst. 209; Baldwin v. Simmons, Ib. 196; Baldwin v. Calkins, 10 Wend. 167, Negus’ case, Ib. 38; Guest’s case, 9 Serg. & Rawle, 319; People v. Vermilyea, 7 Cow. 108; Monroe v. Baker, 6 Ib. 396; Linebough v. Rinker, Peck, 362; Bob v. State, 2 Yerg. 173; Lawson v. Scott, 1 Ib. 92; Huse v. Grimes, 2 N. H. 208; State v. Thompson, Ib. 236; Durham v. Thompson, Ib. 196; Trigg v. Boyce, 2 Hay. 280; Perkins v. Hadley, Ib. 146; Commonwealth v. Peters, 2 Mass. 125; *Street v. Francis, 3 Ohio, 277; Lawton v. Commissioners, 2 Caine, 179; Grænvelt v. Burwell, 1 Salk. 144.
   Lane, C. J.

The defendants object to any examination of these proceedings, because they are pending before us by error, and not by certiorari. The distinction between the respective offices of these writs is well marked in England and in some of the states, but in our practice the difference in the forms of these writs, the mode of allowance, the process, the assignment of errors, and the judgment, is so slight, that it has almost disappeared; and, although no case is known, or believed to exist, where judgments proper have been reviewed by certiorari, or whore the proceedings of other public bodies, except courts of common law, have been cai’ried up by writs of error, yet the acts of courts of record, other than their common law proceedings, are daily examined by writs of' error, and several reported cases show the existence of the practice. 4 Mass. 670; 9 Ib. 465; 4 Pick. 125; Wright, 673; 7 Ohio, 130, 178, pt. 2; 9 Ib. 142.

Our proceedings, for dividing lands under the statute of Ohio, must not be confounded with the common law writ for the same-purpose. .That is properly a suit to which the tenants to the freehold are the regular and the necessary parties, and which binds all rights, by its proper vigor as a judgment.

Our petitions for partitions are, in no just sense, adversary. They confer no new rights, but merely define those already existing.. They have, in truth, no proper parties, but are analogous to proceedings in rem. 6 Ohio, 269; 9 Ib. 120. All presumptions are-to be made in their favor. 10 Ohio, 250; 6 Ib. 255. And their validity is not to be collaterally impeached. 10 Ohio, 250; 12 Ib. 253.

Where the exercise of jurisdiction depends upon the existence-of a fact dehors the record, the act is void, if the fact is shown not to exist. 4 Wheat. 77; 12 Ohio, 207, 253. And if a court falsely assume the existence of the fact on which their jurisdiction depends, and carry into the record their finding of its existence, the proceedings, although void, *yet admit reversal on error, since it may afford the only effectual protection of the party. Upon this principle, judgments against femes covert, or a person deceased, although void, are reversible at common law, upon the-assignment of the error in fact-. So the actual residence of a defendant is assignable as an error in fact, to reverse a foreign attachment, because, say the court, the party seems to have no other-remedy. 2 Ohio, 28.

This reasoning applies to the case before us. The petitioner avers he is a tenant in common with persons unknown, in the two-tracts of land of which he seeks partition. The “persons unknown,” from whom he demands partition, are the real owners, whoever they may be. The right, therefore, to his remedy, depends upon the existence of a tenancy in common, between the real owners of the land which ho seeks to divide, of whom he represents himself to be one. If no tenancy in common subsists between the real owners of the land to be divided, the preliminary fact,, the existence of which he assumes, and which alone renders the-interposition of the court necessary, yields no basis for further action. Land, under such proceedings, can not well.be set out in •severalty anywhere, certainly not in one of two tracts where ■division is demanded, without the sacrifice of some one’s rights ; ■it therefore becomes necessary, for the preservation of all interests, ■to reverse such erroneous proceedings.

Order of partition reversed.