The Am. Express Co. v. Parsons

• Decision Date: 30 April 1867
• Citation: 1867 WL 5154,44 Ill. 312
• Parties: THE AMERICAN EXPRESS COMPANYv.CORDELIA D. PARSONS.
• Court: Illinois Supreme Court

44 Ill. 312

1867 WL 5154 (Ill.)

THE AMERICAN EXPRESS COMPANY

v.CORDELIA D. PARSONS.

Supreme Court of Illinois.

April Term, 1867.

APPEAL from the Superior Court of Chicago; the Hon. JOHN M. WILSON, Chief Justice, presiding.

This was an action on the case commenced by John B. Parsons against the American Express company, on the 5th of March, 1861, in the Superior Court of Chicago.

The declaration contained four counts, but subsequently a nolle prosequi was entered to the first and second. The third count averred, that, on the 25th of December, 1860, plaintiff caused to be delivered to defendants a certain promissory note made by one Daniel McNair, dated the 12th of February, 1859, payable to James H. Baldwin, for the sum of $545, twelve months from date; which was guaranteed by Hammett & Bro., and indorsed by Baldwin in blank and delivered to plaintiff before delivering the same to defendants; that defendants negligently, carelessly and improperly lost the note, whereby plaintiff lost the sum of money therein named.

The fourth count is in trover and in the usual form, and is for the note described in the third count. Defendants pleaded the general issue. On the 12th day of December, 1865, the death of plaintiff was suggested and the suit was revived in the name of his administratrix. A trial was subsequently had before the court and a jury.

William A. Baldwin testified that he took the note to the company for Parsons, and took their receipt, which is this:

“AMERICAN EXPRESS CO., CHICAGO, Jan. 23, 1860.

Received from J. B. Parsons, the following note for collection: Daniel McNair, Galveston, Texas, $545. Proceeds of collection will be returned in funds current where collections are made, and no paper protested unless we have special instructions to do so.

+------------------------------+
                ¦For the proprietors, ¦COOPER.”¦
                +------------------------------+
                

Which was read in evidence. Baldwin stated that he had called at the office of the company, after leaving the note, several times, and they informed him they had heard nothing from it after it was sent, and finally they informed him that it had been lost. That Parsons demanded the note but the company did not return it to him. The agent of the company informed Baldwin that they were not running to Galveston, but they had such arrangements with the Adams Express Company, that they could collect the note.

James H. Baldwin stated that the note was given to him, and he describes it as it is set out in the declaration; and he states that the maker was considered as responsible.

Thomas Wright testified that defendant delivered the note to the Adams Express Company; defendants had arrangements with that company to make such collections.

The court gave for plaintiff this instruction:

“The court instructs the jury, that, if they believe, from the evidence, that the plaintiff gave to the defendants, and the defendants received from the plaintiff, the promissory note in question, for collection, for a compensation or reward therefor to be paid by plaintiff to defendants, and that the defendants, or other persons to whom they intrusted it for collection, lost it by carelessness, then the plaintiff is entitled to recover the value of the note; and that the value, in the absence of evidence to the contrary, is the amount of the note; and that, if the plaintiff is entitled to recover the value of the note, she is also entitled to interest on that value, from the time the note became due to the date of the verdict; and that, if the jury believe, from the evidence, that the defendants, or those to whom they intrusted it, lost it, and it is not shown under what circumstances it was lost, it is presumed that it was lost by carelessness.”

To which the defendant excepted.

Defendant asked, but the court refused to give, this instruction:

“If the jury find for the plaintiff under the first count, the proper measure of damages is not necessarily the amount of the note in question; and that, if the maker of the note has been all the time, and still is, responsible, good and solvent, the damages should be only such actual damage as the plaintiff's intestate sustained under the circumstances of the case, which may be nominal only.”

To the refusal of which defendant excepted. They also asked other instructions embodying the reverse of the rules announced by plaintiff's instruction, but were refused by the court, and exceptions were taken.

The jury found a verdict for plaintiff for $763. Defendant entered a motion for a new trial which the court overruled, and rendered judgment on the verdict. The case is brought to this court by appeal. A reversal is relied upon because the court gave plaintiff's and refused defendants' instructions, and because the motion for a new trial was refused.

Messrs. MCALLISTER, JEWETT & JACKSON, for the appellants.

Mr. GEORGE F. BAILEY, for the appellee. Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

That appellants are liable for damages in this case, is not, nor can be, contested. But it is urged that the court below adopted, in the instruction given, a wrong measure for such damages. It informs the jury, that, “if the company lost the note by carelessness, then the plaintiff is entitled to recover the value of the note, and that the value, in...