The defendants had no contract with the plaintiffs. Their contract was with Edwards, the plaintiffs’ agent; and it was a strictly personal contract, for his safe transportation over the railroads, to which the carriage of suitable personal baggage was merely incidental. Edwards had no right to transport merchandise under cover of his personal baggage; much less could he take merchandise in that manner which belonged to other persons, and thereby give them the rights of a contracting party against the defendants. Jordan v. Fall River Railroad Co. 5 Cush. 69. Collins v. Boston & Maine Railroad, 10 Cush. 506. Hawkins v. Hoffman, 6 Hill, 586. The count upon a contract therefore cannot be supported.
Upon the count in tort, the burden of proof was upon the plaintiffs to show the gross negligence upon which their cause of action depended. The party charging negligence must prove it, and no evidence of it was offered. The failure to deliver the valise in Boston was not evidence of negligence, because there was nothing to show that this failure was the consequence of any thing done or omitted on the defendants’ railroad.
Exceptions overruled.