United States v. American Surety Co. of New York
| Decision Date | 08 January 1908 |
| Citation | 161 F. 149 |
| Parties | UNITED STATES v. AMERICAN SURETY CO. OF NEW YORK. |
| Court | U.S. Court of Appeals — Fourth Circuit |
John C Rose and Morris A. Soper, for plaintiff.
James U. Dennis, for the United States.
On December 1, 1904, the defendant, American Surety Company of New York, became surety on a bond to the United States of America in the penalty of $1,000, conditioned that one Charles W. Hammel 'shall, from and after December 1 1904, faithfully discharge all the duties and trusts imposed on him as such railway postal clerk in the railway postal office above named, or any other railway post office to which he may be hereafter transferred or assigned, or in any position of transfer clerk to which he may be detailed either by law, or the rules and regulations of the Post Office Department of the United States, and shall faithfully account for and pay over to the proper official all moneys which shall come into his hands as such railway postal clerk and shall, upon the termination of his term of office or employment, return to the proper official all property of every kind which shall be in his possession as such railway postal clerk. ' On November 7, 1906, the United States of America brought this suit on said bond against said surety, alleging a breach of the conditions. To the declaration the defendant pleaded (1) non est factum; (2) performance; (3) non damnificatus.
The plaintiff to support its case proved the bond, and read in evidence the stipulation filed in the case which embodies the agreed statement of facts. The defendant thereupon filed the following motion:
'The defendant, American Surety Company of New York, excepts to all the testimony of the senders and addressees, and each of them, of the letters mentioned in the list of letters incorporated in the stipulation heretofore filed in this case, and moves the court to strike out all the testimony of said senders and addressees of said letters, as set forth in said stipulation, because the said evidence is incompetent and irrelevant in this case, as the obligee (the plaintiff) mentioned in the bond is under no obligation to refund to such senders and addressees the sum or sums lost by them, and the losses of such senders and addressees should not be considered in estimating the damages to the plaintiff.'
The plaintiff then closed its case, and the defendant submitted this prayer:
'The defendant, American Surety Company of New York, prays the court to instruct itself, sitting as a jury, that the plaintiff has offered no evidence in this case legally sufficient to entitle it to recover, and that the verdict must therefore be for the defendant.'
On the above motion to strike out testimony it is necessary to consider the right of the plaintiff to maintain such an action as this, when it is not under legal obligation to pay to the senders or the addressees of mail matter damages consequent to them through the loss of such mail matter.
It is to be noted that the mail matter involved in this suit is ordinary, unregistered mail, and the plaintiff is under no legal obligation to the senders or addressees thereof, even though there should be a recovery on this bond, but, in the event of a recovery, there would be a moral obligation on the plaintiff to pay to the claimant the amount so recovered. The government in the operation of the post office department is in law regarded as a bailee of the mail matter intrusted to it for transmission.
The defendant contends that the right of the bailee to sue a third person to recover the possession of the property bailed, or for damages on account of it, being based on the liability of the bailee to answer to the bailor for the property, there would be no liability of such third person to the bailee, if the bailor could not recover from the bailee except that the bailee might, perhaps, bring a possessory action to recover the specific property in order to enable it to carry out the purpose of...
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