Merwin v. Butler

Hijoiax, J. From the facts stated in the motion, in con-nexion with the charge of the court, and the finding of the jury, it must be assumed, that the package of money in controversy, was delivered to and received by the defendant, as a common carrier, to carry and deliver to the cashier of the bank at Poughkeepsie ; and that there was no special contract between the parties, limiting the responsibility of the defendant, as such common carrier. The only question then, is, whether the defendant is excused from the performance of his contract to deliver the money to the bank, because he went there twice, and, at each time, found the bank shut. That there may be circumstances, which would excuse a carrier from the delivery of a package, is doubtless true ; but there is nothing stated in this motion, that ought to have that effect. That the bank was shut, when the carrier went there, can amount to nothing, unless it appeared further, that he went there at a proper time, during the ordinary business hours ; and even then, we could not say, as matter of law. that this would be a legal excuse. It would depend upon the degree of diligence which the carrier used, to let the officers of the [142] bank know that he had a package to deliver there. No question of this sort was raised, on the trial below ; nor does it appear, that there was any foundation on which it could have been. We are satisfied, therefore, that the case was properly disposed of, and do not advise a new trial. In this opinion the other Judges concurred, except Storks, J., who was absent. New trial not to be granted.