It is established by the verdict, that on the evening of April 20th, 1863, the plaintiff deposited with the agent of the defendant, for safe keeping in his vault, a package of the value of about $21,000; that the person to whom the same was delivered, forthwith deposited the package in the safe provided for that purpose by the defendants pursuant to their notice; that the person to whom the package was delivered, was authorized by the defendant to receive the same on their behalf, for the purpose of deposit in their safe. Upon delivering the package to the clerk in the office, the plaintiff testifies, that he wrote his name upon the same, that the clerk inquired its contents, to which the the plaintiff replied, that it contained money, that without further inquiry, the clerk deposited the same in the safe. The plaintiff then asked for a check or a receipt, to which the clerk replied, that they never gave checks, but required the applicant upon demanding his property, to identify it. The jury found a verdict for the value of the package thus delivered, and which, upon demand the next morning, the defendants failed to return to the plaintiff.
The judge, at the trial, held that under these circumstances, the defendants were responsible, if at all, for the entire value of this package. At the General Term, the court held that the defendants were responsible only to the extent of a reasonable sum for the traveling expenses of the plaintiff. This sum, the jury in response to a special inquiry by the judge at the trial, fixed as the sum of $1,000. Our principal duty is to determine which of these rules is the correct one.
Whether the defendants were bound to receive on deposit so large a sum, is not in question. They did receive it, and *Page 185 deposited it in their safe, in pursuance of their notice, and the statute by which it was authorized. Whether the label upon the same was a sufficient compliance with their notice, is not before us. The statute makes no mention of a label, and nothing can be more vague than this term as used in their notice. The most general idea of a label is not of a separate strip of paper or parchment, but a written description of the article upon which it is placed or made, as to its ownership, or character, or quality or extent. The name of Mr. Wilkins was a label. It indicated the ownership. The sum of $20,000, if written upon the envelope, would have been a label. It indicated the value of the parcel. A simple indorsement of the word money, or valuables, would have been a label. If the defendants deemed a label important, and wished to raise a question of law upon the sufficiency of the label on this package, they should have made a specific point upon it at the trial, and asked for a ruling there. This they did not do, and the question cannot be made in this court.
The liability of an innkeeper for the goods of his guest, has been settled for centuries. The act of 1855 does not purport to create it nor even to declare it. It assumes the liability. It enacts that whenever the proprietors of an hotel, shall provide a safe in their office for the keeping of money, jewels, or ornaments, belonging to their guests, and shall notify their guests thereof, and a guest shall neglect to deposit his money, jewels or ornaments therein, the proprietor shall not be liable for any loss of the same by his guest. This act assumes that before its passage, the innkeeper was liable for the loss of the money, jewels, or ornaments of his guest. It assumes that he still remains liable, if a deposit is made by the guest of his money or jewels, according to the terms of the act. It neither enlarges or restricts the liability. It leaves it as the common-law fixes it, with the condition as to money and jewels, that if a particular notice is given by the innkeeper, the liability shall not attach unless such money and jewels are deposited in the office safe. In the present case *Page 186 this notice was given and the condition was complied with. The liability stands therefore as the common-law fixed it.
In support of a rule, which in its general terms is conceded by all, it is not necessary to cite authorities. I will hereafter refer to some of those, which in their facts bear upon the point now in contention.
Is there any basis in principle or in the authorities for the distinction made by the defendant, to wit., that an innkeeper is liable only for such an amount of money as is necessary for the reasonable expenses of the guest? This distinction is sought to be maintained upon the analogy to the case of a carrier of passengers, who is liable only for money or articles convenient to the traveler on his journey, and not for goods or merchandise as such. I will cite a few among the many cases reported in the English courts, as well as in those of this State, to show that this distinction cannot be maintained. I think it will appear that the innkeeper is liable to the guest for the value of all his property lost, whether it be intended for his personal convenience, or for traffic, or for any other general or permanent purpose.
The law was correctly laid down by Lord COKE in Calge's case, more than 250 years since. (8 Co. Rep., 203, 32a.) That case contains an abstract of the law touching the liabilities of innkeepers. "It was resolved per totam curiam this term. 1. That if a man comes to a common inn, and delivers his horse to the hostler, and requires him to be put to pasture, which is done accordingly, and the horse is stolen, the innholder shall not answer for it. 2. The words are eorum bona et catalla infrahospitia, and because the horse which, at the request of the owner is put to pasture, is not infra hospitium, the innholder is not bound by law to answer for him if he be stolen out of the pasture * * but it was holden that if the owner doth not require it, but the innholder, of his own head, puts the guest's horse to grass, he shall answer for him if he be stolen. * * * 5. Although the words eorum bona et catalla do not of their proper nature extend to charters and evidences concerning freehold, or inheritance, *Page 187 or obligations, or other deeds or specialties, being things in action, yet in this case it is expounded by the latter words to extend to them; and therefore if one brings a bag or chest, etc., of evidences into the inn as obligations, deeds, or other specialties, and by default of the innkeeper they are taken away, the innkeeper shall answer for them, and the writ shall be bonacatalla generally, and the declaration shall be special."
In Bennet v. Mellor (5 T.R., 273) the case was this: The plaintiff's servant had taken a quantity of goods to market to sell. Being unable to dispose of them, he went with them to the defendant's inn, and asked the defendant's wife if he could leave the goods there till the next market day, the week following. She replied that she could not tell, for they were very full of parcels. The servant then sat down, had some liquor, and put the goods on the floor immediately behind him. When he got up, after sitting a little while, the goods were missing. A recovery was had, which, upon a rule to show cause before ASHCURT, BULLER and GROSE, JJ., was sustained. It will be observed that the subject here was merchandise, which the servant had taken to market, and which he wished to store until the next market day. It had none of the quality of baggage or of articles of personal convenience.
In Kent v. Shuckard (2 B. Ad., 803) the head-note is, "An innkeeper is responsible for money belonging to his guest." The plaintiff and his wife were guests at the defendant's inn. The wife left her reticule, containing money, on her bed. Returning for it in a few minutes, it was gone. The report does not state the amount of the money lost. On the trial it was urged, on behalf of the innkeeper, that he was responsible for goods and chattels only, and not for money. The jury found a verdict for the plaintiff; and on a motion before Lord Chief Justice TENTERDEN and Justices PARKE, TAUNTON and PATTESON, the same point was taken. Andrews, sergeant, urged, that while innkeepers are liable for goods and chattels, "there is no authority to show that they are so for money. If they be, there will be no limit to their *Page 188 responsibility. An innkeeper cannot know or form any judgment of the amount of money a guest may have." The court sustained the verdict, holding the innkeeper responsible for the money.
In Jones v. Tyler (1 Ad. Ellis) the horse and gig of the guest were taken in charge by the defendant's hostler, who placed the gig in the open street. The gig having been stolen, the innkeeper was held responsible.
Richmond v. Smith (8 B. Creswell, 9) was a recovery against the innkeeper, for the value of certain packages of silk which the plaintiff had and exposed for sale. The defence was attempted on the ground that the plaintiff had taken the goods under his own protection in his private room. It was not argued that the circumstance that the goods were articles of merchandise afforded a defence.
Of the same character are the reports in our own State. Clute v. Wiggins (14 J.R., 175) was this: The plaintiff came to the defendant's inn with a load of wheat and barley, and was received as a guest for the night. The horses were put into the stable, and his sleigh with its contents into a wagon-house, where it was usual for the defendant to receive loads of that description. The next morning it was discovered that the wagon-house had been broken open, and the wheat and barley stolen. The innkeeper made two points: 1. That the goods had not been delivered into his special custody. 2. That he derived no profit from keeping the wheat. The recovery for the value of the grain was sustained.
In Hallenbake v. Fish (8 Wend., 547), the plaintiff stopped with his horse at the defendant's inn, and upon calling for his horse, his saddle and bridle could not be found. The plaintiff brought trover for the saddle and bridle. The Supreme Court held, that in trover, he must prove an actual conversion, and that a conversion was not sufficiently proved. They say, that upon the facts presented, there could be no doubt that an action on the case upon the custom, would have lain against the defendant. *Page 189
In Piper v. Many (21 Wend., 283), the plaintiff, with his horses and a sleigh load of butter, stopped at the defendant's inn. A portion of his butter was stolen during the night. The defendant endeavored to protect himself on the ground, that the butter was not brought within the inn, but was left in the yard. The court held the defendant liable.
So recently as the year 1865, in Hulet v. Swift (35 N.Y.R., 571), a similar case was presented. The plaintiff's servant, with his horses, wagon, and a load of buckskin goods, stopped for the night at the defendant's inn. A fire occurred during the night, by which the property was destroyed. It did not appear how the fire originated, and there was no evidence of negligence on the part of the defendant. The defendant was held to be responsible.
On the general principle, See also, Story Com., § 480-1; 2 Bl. Com., 430; 2 Kent's Com., 593.
The cases cited, show that the distinction contended for by the defendant's counsel cannot be maintained. I am not aware of a single reported case which sustains it, nor of any elementary writer, who gives countenance to it.
It is true, that the days of violence, which in early times required this protection to the traveler, have passed away. It is not certain, however, that we are less exposed to fraud. We may have grown wiser and better than our fathers. It is to be hoped that we have. It may be, however, a change of manners rather than of morals. The day of the two-handed broad-sword has gone by; that of sleight-of-hand and finesse has come in. A guest is in less danger of being robbed and murdered, but possibly not of being cheated. He is now required to place his money and his valuables in the actual custody of his host, as a condition of a protection for his money and jewels. (Laws 1855.) The law makes no provision for any evidence of this deposit. In the case before us, the clerk declined to give any. He deposits his money, and that is all he knows about it, and he can do nothing toward its protection. May the innkeeper say that he has been robbed, and that he is thereby excused? Who has *Page 190 robbed him, a stranger or his servant? May he say that the amount is too large? He has ample means of protecting it. If his servants and himself are honest, the money is safe in its deposit. This honesty he is bound to guaranty. The guest is quite in the power of the host, and unless the ancient rule is maintained, the danger to the public will be great. I see nothing in the present condition of society, or modes of doing business, that calls for its relaxation.
The defendants make some minor points, to which I will refer. They say, that if the plaintiff's negligence contributed to the loss, he cannot recover, and that the question of his negligence should have been submitted to the jury. There was nothing upon that point to leave to the jury. If it had been so left, and the jury had found negligence, it would have been the duty of the court to set aside the verdict.
The defendants, again, asked the court to charge, that, if the plaintiff's relation of material facts was contradicted in important particulars about which he could not be mistaken, his evidence was not entitled to credit. This was simply asking the court to usurp the province of the jury, and to hold, as matter of law, that, in a conflict of evidence, the defendants' witnesses were right and the plaintiff was in the wrong. The court very properly charged, that, if the jury believed that the testimony of the plaintiff was contradicted in important particulars by witnesses whose testimony they preferred to his in regard to transactions testified to by both, they were authorized to disbelieve his whole statement. They were not bound, but they were authorized, to do so.
The defendants say, also, that it was error to admit evidence that, at a time anterior to the alleged deposit, and at a place distant, the plaintiff was seen in possession of money and bills corresponding in appearance with the deposit, and to allow the witness to state its probable amount. The evidence of Mitchell was of this character. He testified that, in April, 1863 — the deposit being on the 20th of that month — the plaintiff was at his office in Philadelphia, and while there he saw him take out an envelope containing two French drafts, *Page 191 drawn by the Citizens' Bank of Louisiana, and a large amount of money, several $1,000 notes and several $100 notes (greenbacks), and that, although he did not count it, he was satisfied that he saw from $12,000 to $15,000. The judge admitted this evidence; and it must be conceded that it was calculated to produce an impression with the jury in the plaintiff's favor. The plaintiff testified that the deposit he made with the defendants' clerk included two French drafts, drawn by the Citizens' Bank of Louisiana on parties in Paris, and that his money consisted, among other items, of a number of government bills (commonly called greenbacks, from their color), of the denomination of $1,000 and of $100.
I think no one would have denied the admissibility of this evidence, if the time and place had been Earle's hotel and April 20th after tea. The plaintiff says that, after tea, at six or seven o'clock on that evening, in the hall near the water closet, he put these securities in a new envelope, and proceeded directly to the office and made the deposit. If some one had seen these drafts and these bills while thus in the course of transfer, and had been able to speak with as much definiteness as to the amount as Mitchell did, I think it would be evidence, although he did not accompany the plaintiff, or have him constantly under his eye, until he made the deposit. To reject it, would evince too much nicety and fastidiousness in applying the rules of law. It is true that the fact that the plaintiff had this money and these securities does not certainly prove that he made the deposit. It is equally true that he could not have made the deposit he testifies to, unless he had them. When you prove, therefore, that shortly before the 20th of April the plaintiff had in his possession the particular drafts which he claims to have deposited, and the particular bills of $1,000 and $100 which he also claims to have deposited, some links in the chain are furnished. Their strength depends upon their nearness and relation to the transaction. (Kennedy v. The People,39 N.Y., 245.) If A, at seven o'clock, had seen this envelope and its contents with the plaintiff, and B, at five minutes past seven, had seen him make the deposit, *Page 192 I think the two could, by the inference of the jury, be connected together, although there was an interval when he was not within the sight of either. There is a legal presumption of continuance. A partnership once established is presumed to continue. Life is presumed to exist. Possession is presumed to continue. The fact that a man was a gambler twenty months since, justifies the presumption that he continues to be one. An adulterous intercourse is presumed to continue. So of ownership and non-residence. (Waleod v. Ball, 9 Barb., 271; Cooper v.Dedrich, 22 id., 516; Smith v. Smith, 4 Paige, 432;McMahon v. Harrison, 2 Seld., 443; Sleeper v. VanMiddleworth, 4 Denio, 431; Nixon v. Palmer, 10 Barb., 175.) This analogy is fairly applicable to the present case, and justifies the admission of this evidence.
Upon the whole case, I am of the opinion that the order of the General Term, directing judgment for $1,000, be reversed, with costs, and the judgment be entered upon the verdict of the jury, with costs.
All concur.
Judgment reversed, and judgment ordered for the plaintiff for $21,649.27, and interest from the rendition of the verdict.