in the case of The Mechanics' Bank v. The Bank of Columbia, 5 Wheat. 326, in which it is said that the liability of the principal depends upon the facts: 1. That the act was done in the exercise; and 2. Within the limits of the powers delegated. Any act, they say, within the scope of the power or confidence reposed in the agent, such as money credited in the books of the teller of a bank, or proved to have been deposited with him, although he omits to credit it. And in the case of Ellis v. Turner, 8 T. R. 533, Lord Kenyon says: "The defendants are responsible for the acts of their servant in those things that respect his duty under them, though they are not answerable for his misconduct in those things that do not respect his duty to them, as if he being master of the defendants' vessel, were to commit an assault upon a third person in the course of his voyage." And upon the same principle it has been holden that if a servant willfully drive his master's carriage against the carriage of another, the master is not liable for the damages: 1 East, 106. And the reason is the same; for in such case there is no authority from the master, express or implied; the servant in that act not being in the employment of his master. In the case here referred to, the master was not in the carriage at the time; the law would have been the same if he had been present, and had endeavored to prevent the act; the presence of the master being only presumptive evidence of authority. I think it may be inferred from all this, as a general rule, that to make the master liable for any act of fraud or negligence done by his servant, the act must be done in the course of his employment; and that if he steps out of it to do a wrong either fraudulently or feloniously towards another, the master is not more answerable than any stranger. The cases of innholders, common carriers, and perhaps ship masters or seamen, when goods are embezzled, are exceptions to the general rule founded on public policy. We are then to inquire whether, in this case, when the gold was taken from the cask by the cashier and clerk, they were in the course of their official employment. Their master, the bank, had no right to meddle with the cask, or open it, and so could not lawfully communicate any authority; and that they did not, in fact, give any, is found by the verdict. Nor did they in any manner assent to, or have any knowledge of it. There are no circumstances, then, from which such authority can be implied. The chest or cask when once placed in the vault was to remain there until taken away by the owner, or ordered away by the bank; either party having a right to discontinue the bailment. It was never opened but by order of the owner until it was opened by the officers for a fraudulent or felonious purpose. It was no more within the duty of the cashier than of any other officer or person to know the contents, or to take any account of them. If the cashier had any official duty to perform relating to the subject, it was merely to close the doors of the vault when banking hours were over, that this, together with other property there, should be secure from theft. He cannot, therefore, be considered, in any view, as acting within the scope of his employment when he committed the villainy, and the bank is no more answerable for this act of his than they would be if he had stolen the pocket-book of any person who might have laid it upon the desk while he was transacting some business at the bank. If it be asked for what acts then of a cashier or clerk the bank would be answerable, I should answer, for any which pertain to their official duty, for correct entries in their books, and for a proper account of general deposits, so that, if by any mistake or by fraud in these particulars any person be injured, he would have a remedy. If they should rob the vaults of the property of the bank, the company would necessarily lose; and if the bank have become debtors to those who have deposited otherwise than specially, their debts will not be diminished by the fraud; so that in this form they are answerable to depositors, and for the correct conduct of all their servants, in their proper sphere of duty, they are answerable. They may also be answerable for notices to indorsers upon bills and notes left with them for collection, if there should be a failure by neglect of any of their servants, because they have undertaken to give the proper notices. But even in that case it may admit of a question whether they would be liable any further than attorneys who undertake the collection of debts, would be. But they are not answerable for special deposits stolen by one of their officers any more than if stolen by a stranger, or any more than the owner of a warehouse would be who permitted his friend to deposit a bale of goods there for safe keeping, and the goods should be stolen by one of his clerks or servants. The undertaking of banking corporations, with respect to their officer is that they shall be skillful and faithful in their employments: they do not warrant their general honesty and uprightness. And it is the same. with individuals. If a friend commit to my care valuable property to keep for him, and it be stolen by my servants, I shall not be answerable for the loss, as was stated by Lord Kenyon in the case of Finnucane v. Small. This case, before referred to for another purpose, deserved special notice upon this point; for if it be law, it goes the whole length of the case before us, and even beyond it; for the bailee there received a reward for his custody of the goods which were stolen. The plaintiff was an officer in the army, and being about to leave London, sent his trunk to the defendant's house for safe custody, and was to pay one shilling a week for house-room. When he returned he received the trunk, but the contents had been stolen. Lord Kenyon held the defendant not liable, it appearing that he had taken as much care of the trunk as he had of his own goods; and that if the goods were stolen by the defendant's servants, as was stated to have been the fact by the plaintiff's counsel, it would make no difference. His lordship no doubt considered the hire agreed to be paid as mere compensation for house-room, not as a reward for diligence and care, and therefore did not require of the defendant more care than he used about his own goods, considering it as a simple deposit only. Whether he was right or not in this, there is no doubt of the correctness of his opinion with respect to the agency of the servants in the theft; for they were not in the course of their duty when pilfering the trunk of its contents. Garrow and Shepher, eminent sergeants, and since judges, acquiesced in the opinion. The case is in all respects like the one before us, except that the goods were to be kept for hire: and the difference is altogether in favor of the defendants in the present case. In answer to this, it was observed by the counsel for the plaintiffs that the cashier of the bank was trusted, and therefore, the doctrine of Lord Kenyon did not apply. But if we are right in the principles before stated, he was not trusted in this business; neither he nor his principal, the bank, having anything to do with the chest or cask but to give it a place in the vault, and to lock it up when the hours of business were over; and so the cashier must be considered like the servant in the case cited. 1 Some stress was laid in the argument upon the security taken by the bank of the cashier for the faithful discharge of his duty. But we think it obvious that nothing was contemplated in the security but the official neglect of the cashier. The act of incorporation authorizes the bank to require bonds, in a sum not less than ten thousand dollars; and a bond was taken for that sum only. Now, considering this as one of the oldest banking companies in one of the most wealthy towns in the commonwealth, without doubt special deposits of a vast amount were from time to time received into the bank for safe-keeping, and a bond for ten thousand dollars could never have been taken to indemnify against a possible loss of these. Upon a view, therefore, of all the points in the case, and after a careful attention to the arguments and authorities, we are satisfied that upon the special verdict, judgment must be entered for the defendants. Costs for the defendants. RISK OF LOSS WHERE SELLER THOUGH DELIVERING BURLEY V. TUFTS 66 Miss. 48 Tufts sold Burley a soda water fountain on installments, title to remain in Tufts until the last installment was paid. Before the last installment became due, the soda water fountain was destroyed by fire without the fault of either party. Burley claimed that he was not liable to Tufts for the last installment because Tufts still held the legal title, and therefore the risk of loss from fire was on him. Burley had complete control and use of the property from the time of its purchase until it burned. COOPER, J. delivered the opinion of the Court: "Burley unconditionally and absolutely promised to pay a certain sum for the property, the possession of which he received from Tufts. The fact that the property had been destroyed while in his custody and before the time of payment of the note last due on payment of which only his right to the legal title to the property would have accrued, does not relieve him of payment of the price agreed on. The transaction was something more than an executory conditional sale. The seller had done all he was to do except receive the purchase price; the purchaser had received all he was to receive on consideration of his promise to pay. The inquiry is not whether if he had foreseen the contingency which has occurred, he would have provided against it, nor whether he might have made a more prudent contract, but it is whether by the contract he has made, his promise is absolute or conditional. The contract made was a lawful one, and as we have said, imposed upon the buyer an absolute obligation to pay. To relieve him from his obligation the court must make a new agreement for the parties, instead of enforcing the one made, which it can not do. Singer Sewing Machine Co. v. Cole, 4 Lea 439. Judgment affirmed. THE GENERAL ASSEMBLY OF THE STATE OF ILLINOIS HAS THE RIGHT TO FIX BY LAW THE MAXIMUM CHARGES FOR STORING GRAIN IN WAREHOUSES MUNN V. ILLINOIS 94 U. S. 113 (1876) Action against Munn and Scott, owners of a grain elevator in Chicago, for failing to take out a license under a statute passed by the legislature in pursuance and under authority of an article of the constitution of Illinois, and for charging for storage more than the rates fixed by such statute. The defendants were found guilty and fined $100, and this was affirmed by the Supreme Court of Illinois. Munn & Scott sued out writs of error to this court. Mr. Chief Justice Waite delivered the opinion of the court. The question to be determined in this case is whether the general assembly of Illinois can, under the limitations upon the legislative power of the states imposed by the Constitution of the United States, fix by law the maximum of charges for the storage of grain in warehouses. at Chicago and other places in the state having not less than one hundred. thousand inhabitants, "in which grain is stored in bulk, and in which the grain of different owners is mixed together, or in which grain is stored in such a manner that the identity of different lots or parcels cannot be accurately preserved." It is claimed that such a law is repugnant 1. To that part of sec. 8, art. 1, of the Constitution of the United States which confers upon Congress the power "to regulate commerce with foreign nations and among the several states;" 2. To that part of sec. 9 of the same article which provides that "no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another;" and 3. To that part of amendment 14 which ordains that no state shall "deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." We will consider the last of these objections first. Every statute is presumed to be constitutional. The courts ought not to declare one to be unconstitutional, unless it is clearly so. If there is doubt, the expressed will of the legislature should be sustained. The Constitution contains no definition of the word "deprive," as used in the Fourteenth Amendment. To determine its signification, therefore, it is necessary to ascertain the effect which usage has given it, when employed in the same or a like connection. |