Barney v. Daniels

Elliott, J. The questions presented in the case are, first, as to the sufficiency of the statement filed by the express, company in the recorder’s office, under the act of the legislature; and second, if the statement is not a substantial compliance with the act, is that fact sufficient to defeat the appellant’s right to recover on the bond, under the facts presented by the finding of the court? The act referred to provides, “Sec. 1. That all persons, association of persons, or companies, usually called express; [23] companies, regularly engaged, or hereafter to he engaged' in the business of carrying or transporting packages or parcels of hank notes, coin, merchandize, or other articles;, over or upon any of the railroads, rivers, canals, or other-thoroughfares in this State, and receiving or agreeing to receive, compensation for such sei’vices, shall be, and they are hereby declared, common carriers, and shall be subject to all the liabilities to which common carriers are subject according to law. " “Sec. 2. Such persons, associations, or companies, shall; file in the office of recorder of each county in which their business is conducted, or where they may have an agency or office, a statement showing the full name of every such person and member of every such association or company, and also his or her proper place of residence, and the amount of capital employed in such business; and also an agreement that legal process served upon any agent of said person or persons, association, or company, in such county, shall be deemed and taken as good service upon such person or persons, association or company; and it shall be the duty of the recorder to make a record of the same, and also to publish in a newspaper of the cbunty, if there be a newspaper, or otherwise to post up in three of the most public places in the •county along the proper route or line, a full and complete copy of such statement and agreement, which shall he duly certified by said recorder. Such statement shall he signed by the persons and members of such associations or companies, and shall be verified by oath or affirmation before the same is admitted to record. * * * Until such notice be given it shall not be lawful for any person, association, or company, to transact the business named in the first section of this act in such county; and any person, member of any association or company, or any agent thereof, violating the provisions herein contained, shall, for every such offense, be guilty of a misdemeanor, and upon conviction thereof shall he fined not less than ten nor more than one hundred dollars, in the name of the treasurer of the county: Provided,that [24] nothing contained in this section shall be construed to affect the rights or privileges of persons, citizens of this State, engaged in the ordinary transportation of merchandise, produce, or other articles, in wagons or other conveyances.” It is claimed by the appellees’ counsel that the statement filed by the express company in the office of the recorder is nofia substantial compliance with the statute, because it does not show the full names of all the members of the company, together with their proper places of residence. The statement shows that the business of the company is managed, and its property and effects are owned, by five trustees, the names of four of whom, and their respective places of residence, are given; and it is futher stated that there is one vacancy; and that “the persons interested as cestui que trust are the stockholders of said company, who change from day to day, and of whom it is impossible to make an accurate statement, owing to the frequency of such changes.” We think this a sufficient statement of the names and residence ’of the members of the company, within the spirit and-object of the law. We must presume that it was not intended by the statute to make a useless or imjsossible requirement. The statement shows that the property and effects of the company are owned by the trustees whose names are given, and the business conducted and managed by them. They-are the trustees of an express trust, and as such possess '-the power to sue, and may be sued. They agree that process served on any agent of the company shall be deemed and taken as good service upon the company and themselves. The names and residence of the stockholders on a given day, if stated, would answer no beneficial purpose, as they are constantly changing, and would only be calculated to mislead, should it be attempted to include them all in a suit. The purpose of the statute in that respect seems to be answered by the statement made. Another objection to the statement is, that it does not show the whole amount of capital employed by the company in [25] its business, but only the probable amount employed in its business in this State. This objection, we think, is well taken. These express companies have been called into existence by the widely extended system of railroads in the United States, with which they are immediately connected. The United States Express Company was organized in the State of New York, where three of the trustees named in the statement filed reside. It transacts a large business, extending, at least, into many of the states, and through its multiplied agencies receives daily a large number of valuable packages for transmission. The capital employed in its business constitutes a common fund, and is alike liable for all its obligations. And it was evidently the intention of the statute to require a statement of the entire amount of the capital employed by such companies in the express business, and not merely the amount that might be employed in this State. It remains to be considered whether the fact that the statement filed by the express company did not comply with the requirement of the statute, constitutes a valid defense to the action on the bond. We concur in the argument on behalf of the appellant, that a person or company proposing to do an express business, before filing the statement required by the statute, may lawfully make all the necessary preliminary arrangements, such as fitting up offices, arranging routes, and appointing agents; and hence the appointment of ITenry W. Daniels as agent and taking from him the bond in suit to secure a faithful discharge of his duties, was not unlawful. Eor, in the absence of a showing to the contrary, it must be presumed that the bond, when given, was only intended to secure the performance bf lawful acts. It was not therefore void in its inception. But it appears by the finding of the court that the money sought to be recovered in this suit was received by Henry W. Daniels, the principal in the bond, for and in the transaction of the business of the company as express carriers. Such business being unlawful, [26] because of the insufficiency of the statement filed by the company in the recorder’s office, did a failure to pay over the money constitute a breach of the bond? This is the second time this case has been before this court. In the former examination of it (see 22 IncL 207), the question just stated was passed upon. It was then said, that if “the bond was given upon a contract of agency in the performance of legal acts only, then the company has no right to inquire the agent to perform illegal acts, and the bond would not extend to anything connected with such acts, because they were not covered by the bond. See Story Agency, § 344 et seq.” We adhere to that opinion. It must be remembered that this is not a suit against the agent for money had and received to the use of the principal; but it is a suit on the bond against the agent and his sureties,-to recover money received by the former in the transaction for the principal of illegal acts. The sureties were only bound for the faithful performance of the agent in lawful transactions, and the money sought to be recovered, having been received by the agent for and in the performance of acts in violation of law, is not covered by the bond, and the finding-and judgment of the court are therefore correct. L. Barbour, C. P. Jacobs, T. A. Hendricks, O. B. Hord, and A. W. Hendricks, for appellant. A. G. Borter, B. Harrison, and W. P. Bishbaek, for appellees. The cases referred to by the appellant in support of the argument that the defects in the statement filed by the company with the recorder cannot be made available in a collateral suit on the agent’s bond, are not in point, and do not sustain the position. Judgment affirmed, with costs.