Beardslee v. Richardson

*By the Court,

If the defendant was liable upon the money counts, he was not liable as bailee but as having received the money of the plaintiff for his use. The evidence does not prove that fact, nor does it show that he received it otherwise than in a sealed letter. It cannot be said to be money in the defendant’s hands ; unless he broke the seal, it could not answer the purposes of money, and there is no evidence of such act.

It was a sealed package of the value of $100, which the defendant as bailee, without reward, undertook to deliver. It was held at the circuit and I think correctly, that the plaintiff could not recover upon his special counts which charged the defendant as bailee. The defendant was liable for gross neglect only ; and whether he was guilty of any neglect, does not sufficiently appear from the testimony. It does not appear that any demand was made, or application of any kind until the suit was brought. The plaintiff was bound to show that the money was lost by the defendant’s negligence, or could not be obtained on request. Had he shown a demand and refusal, the defendant, I think, would have been bound to account for the loss, and to indemnify the plaintiff, unless he could show the property lost without fault on his part, that is, without gross negligence.

New trial granted -; costs to abide event.