The undertaking of the defendant, was gratuitously to carry the money to Sartain to whom it belonged; designated in the law of bailments as a mandatmn, and under which there may be a simple custody, or labor in carrying, or other character. Whether under that law, the bailee would, or would not, under any circumstances be liable for non-feasance of a bailment once undertaken, from which the bailor might be damaged, as a failure to present bills for acceptance or payment, and give notice, &c., I shall not here inquire, as the defendant did not decline to act. But the question arises upon the manner in which he performed the act. The general principle laid down on this subject is applicable to this case; and there is little or no controversy as to what that principle requires.
A mandatary or bailee, who undertakes, without reward, to take care of the pledge, or perform any duty or labor, is required to use in its performance such care as men of common sense and common prudence, however inattentive, ordinarily take of their own affairs, and they will be liable only for bad faith, or gross negligence, which is an omission of that degree of care. Tracy et al. v. Wood, 3 Mason R. 132; 2 Kent Com. 568 to 573; 17 Mass. R. 479; 8 Metcalf R. 91; Story on Bailments, Secs. 174, 175; 2 Hawk. N. C. R. 145; Doorman v. Jenkins, 2 Adolph, and Ellis R. 256; Coggs v. Bernard, Ld. Raymd. R. 909; 11 Wend. R. 25; 14 Serg. and Rawl. R. 275.
If the mandatary undertake to carry or pay money, or transmit it, and the money is delivered to him for that purpose, he is bound to perform his undertaking, under the degree of care required, and subject to the degree of responsibility attached to such an undertaking. Story on Bailments, Secs. 171a, 171b, 171c; 11 Wend. R. 25.
Whether there is gross negligence or not, seems to be a question of fact, for a jury upon all the circumstances; Story Bail. Sec. 174, notes; and the line of distinction, between what is and what is not sufficient diligence in the bailee, under the circumstances, is nice and difficult to draw. See Jones on Bailments 62. Rendberg’s case, 6 Rob. R. 142, 155; Tracy v. Wood, 3 Mason R. 132.
The difficulty in this case, is not in the principles of law which govern, but in the facts; and this is made more apparent, by the fact that the issue has been found in favor of such party.
From the view we take of the facts, we cannot sustain the finding of the court. But by no standard of common prudence in common affairs, can we say, that it was not gross negligence to hand money to a strange boy, and especially under the suspicious circumstance that he had demanded all the money coming to his employer from defendant’s post office, within three or four days after he commenced carrying the mail.
Had Sartain usually, or ever, sent for money in that way before, or without sending the drafts, or an order, this conduct might not have appeared so gross; but the contrary is in proof; and such seemed to have been the effect upon the postmaster at Kickapoo, who demanded a draft or an order. If the defendant was imposed on by these circumstances, and the simple fact that the boy was employed as mail rider, he has shown a degree of stupidity and carelessness at variance with all prudence. It is true, the money might have been safely carried by the boy, but there was not one circumstance to warrant any one having the slightest degree of prudence, to rely upon or expect it.
There is nothing shown in the plaintiff's conduct, assenting to any more than what defendant recommended by his own conduct in the matter.
If we could feel satisfied upon any view of defendant’s case in this matter, we should affirm the judgment. But we cannot, and therefore the judgment must be reversed and the cause remanded for another trial.
Judgment reversed.
Catón, J.I think this judgment should be affirmed.