Garey v. Meagher & Co.

STONE, J.— In the case of Hosea v. McCrory, 12 Ala. 349, it was submitted to the jury to determine, whether “ it was the custom and usage for clerks (of steamboats) to carry (cash) letters;” and this court approved and affirmed a charge of the court in that ease, which asserted that, “ if the proof showed it was the custom and usage for clerks to carry letters, the clerk must be regarded as the agent of the master, and a delivery to the clerk was a delivery to the master.” In commenting on this charge, our predecessors said, “ this, we think, was a correct exposition of the law on this subject.” The case of Hosea v. McCrory was decided more than ten years ago; and the presumption must be indulged that, on the faith of that decision, many cash-letters have been remitted, per steamboat, to the interior. "We do not feel at liberty now to depart from it. In the record we are considering, the proof of the usage to send cash-letters to the interior by steamboats, is equally strong with that made in the case cited supra. The proof is alike in that case and this, that the transportation of cash-letters is no part of the regular business of steam [634] boats—that no receipt is given for them, and no charge made for carrying them; and that such letters are delivVered to the clerk, and by him kept and delivered. Applying the principles stated supra to this case, it should have been left to the jury to say, whether it was-the general usage of steamboats to carry cash-letters to the interior; and if the j.ury found such to be the case, then the principle would' apply, that the act of receiving the letter by the clerk would become the act of receiving by the master and owners. [2.] This record' contains no evidence of a custom of trade, or of the river, limiting the liability of the defendants. It only contains the opinions of witnesses, that the clerk only, and not the master, is liable in a case like the present. To give this evidence the effect claimed, would be to allow the opinions of witnesses to overturn the decision pronounced in this court in the case of Hosea v. McCrory, supra.—See Jewell v. Center & Co., 25 Ala. Rep. 498, The charge given by the court, and the charges asked and refused, are in conflict with this opinion. Judgment of the circuit court reversed, and cause remanded.