This is an action of tort, or contract, to recover the value of nine bundles of clothing which the defendant, a common carrier of merchandise, is alleged to have negligently lost, or failed to deliver, under a contract of transportation from Boston, Massachusetts, to Norfolk, Virginia. The trial court directed a verdict for the defendant and the case is here on the plaintiff’s exceptions.
The jury would have been warranted in finding that the plaintiff’s shipper on December 24, 1920, having packed and addressed nine bundles of clothing for shipment to Rhoads & Swartz, Norfolk, Virginia, hung out a call card of the defendant which he obtained from one of the defendant’s drivers. In apparent response to the call a man came, wearing a cap with a monogram, and an overall suit with a badge of the defendant, to whom he delivered the bundles, and from whom he received a receipt for the shipment, signed “ Carney.” The bundles were never received by the consignees and a claim for damages for the loss was seasonably made by the plaintiff. The uncontroverted evidence of the defendant showed that the defendant had no record of the shipment, and that none of its employees authorized to accept shipments at its place of business had received the bundles, and that the plaintiff had been defrauded by an impostor, who, having purloined the cap and badge, represented himself as the defendant’s agent. The plaintiff’s shipper in his evidence identified one Howlett, then in the court room, as the man who had signed the name “ Carney,” and obtained the bundles. While the plaintiff did not call him, Howlett, who had been employed by the company as a helper, but had been discharged prior to the date of the alleged shipment, testified for the defendant, and fully described the theft and use of the badge, and his asportation of the shipment.
The plaintiff contends that, because of the implied representation of agency resulting from the use of the badge, the defendant is estopped from denying liability. But the "defendant is not shown to have been at fault. It did not mislead the plaintiff by holding out Howlett as its ostensible agent. The larceny of the badge shows no breach of duty to *353the plaintiff. Tracy v. Lincoln, 145 Mass. 357, 360. Seretto v. Schell, 247 Mass. 173. It was necessary for the plaintiff to introduce evidence from which it could be found that Howlett was the defendant’s agent, and having gone no further than to show that he purported to act for the company, and not for some one else, the exceptions must be overruled. Rolfe v. Tufts, 216 Mass. 563, 568,
So ordered.