#### Joseph Feiber, Appellant, *against*The Manhattan District Telegraph Company, Respondent.

(Decided December 3d, 1888.)

Defendant, a corporation organized under the act for the incorporation of telegraph companies, furnished messengers to carry parcels for those desiring to employ them. One of its messengers, intrusted by tailors with a parcel of clothes to be delivered to a customer, was instructed to bring back the goods if they were not paid for. The customer kept part of the clothes, but sent back the rest with a letter *63saying that they did not fit, and with money to pay for what he kept, which the tailors refused to accept, insisting that all the goods must be returned or none. *Held,*that defendant could not be held liable for the value of all the goods, as for a conversion of the entire parcel; and that in the absence of evidence of the value of any of the goods, it was not shown that any loss was sustained.

At the trial, the justice having stated that, in his view, a certain question of law was controlling, plaintiff, believing that he was almost certain to succeed on that point, did not offer proof of damages, necessary to a recovery on a different view of the case. *Held,*on appeal from a judgment against him, that his error of judgment was not ground for granting a new trial.

Appeal from a judgment of the District Court in the City of New York for the Fourth Judicial District.

The action was brought by plaintiff as assignee of Jacobs Brothers., for the value of certain goods intrusted by the latter to a messenger, furnished to them by defendant, for delivery to a customer. The facts are stated in the opinion.

*Charles L.*Cohn, for appellant.

Vanderpoel, *Grreen &*Cuming, for respondent.

Per Curiam.

[Present, Van Hoesen and Bookstaver, JJ.]—Though the defendant was organized under the act of 1848, entitled “ An act to provide for the incorporation and regulation of telegraph companies,” it had in its service messengers whose business it was to carry parcels for those who desired to employ them in that work. It is a necessary incident to that business that the messengers shall receive and carry out the instructions of the senders of the parcels respecting the delivey. If the sender instruct the messenger not to deliver a parcel except on the happening of a certain event, the messenger has no right to disregard that direction. It matters not whether the defendant be a common carrier or not, it is bound to obey the instructions of its employer respecting the delivery of packages that it undertakes to carry *(Tooker*v. *Gorman,*2 Hilt. 71).

In this case, the defendant undertook to carry for Jacobs *64Brothers, to a Mr. Duckworth, of Brooklyn, a bundle containing a suit of clothes and an overcoat, and the messenger was instructed to bring back the goods if they were not paid for. Mr. Duckworth, who appears to be a responsible man, took the overcoat and the trousers, bub refused to accept the coat and the vest because they were too tight. He had already paid Jacobs Brothers ten dollars, and he gave to the messenger a check for twenty dollars, with instructions to carry it, together with the coat and the vest, back to Jacobs Brothers. He also sent a letter saying that the coat and vest did not fit, and that when they were made to fit he would accept them. Jacobs Brothers refused to receive the check, or the coat and vest, and insisted that all the goods must be returned or none. Because Duckworth did not return the coat and vest, Jacobs Brothers contend that the defendant is liable for tiie full value of all the goods that the bundle contained, *the*argument being that the leaving of a part of the goods with Duckworth amounted in law to a conversion of the entire lot.

That view is not correct. Upon the theory that the defendant is liable for the loss that was occasioned by a violation of Jacobs’ instructions, our duty is to inquire, what was the extent of that loss ? If the instructions had been literally carried out, all the clothes would have been returned to Jacobs Brothers. The grievance is that the trousers and the overcoat were not brought back as well as the vest and coat. Jacobs Brothers have no right to make any claim for the vest and the coat, for these articles were returned to them. *For*the trousers and the overcoat Duckworth paid or tendered what he considered the value, and there is nothing in the evidence to show that he undervalued them, or that Jacobs Brothers would have sustained any loss whatever if they had accepted the thirty dollars in payment for those garments. The plaintiff failed to offer any proof as to the value of any of the articles, his theory of the case being that he was entitled, without reference to the actual value of the goods, to recover the sum that Duckworth would have been bound to pay if he had accepted the entire lot of clothing. The case is, therefore, barren of evidence to show that Jacobs Brothers sus*65tained any loss at all. Though the justice may not have founded his judgment upon the right ground, there is nothing to lead us to the conclusion that the plaintiff was aggrieved by the decision.

If Duckworth ought to accept the coat and the vest, Jacobs Brothers can sue him for the price. If the coat and vest do not fit reasonably well, Duckworth is not bound to take them, nor ought Jacobs Brothers to be permitted to evade the question that Duckworth has raised as to the fit of the garments by the technical claim that goods that were returned to them have been wrongfully converted by the defendant.

We must not be understood as intimating that the defendant would have been liable if the messenger had collected the money from Duckworth, and then lost or misappropriated it. There is no such question in this case.

Our decision goes no further than to hold that if a messenger be instructed not to deliver goods except upon certain conditions, he is liable if he makes a delivery in violation of those conditions.

Judgment affirmed.

Upon motion by plaintiff for a re-argument, the following opinion was delivered, April 1st, 1889 :—

Per Curiam.

[Present, J. F. Daly and Van Hoesen, JJ.] —The brief of the defendant, used on the first argument of the appeal, disposes of the suggestion that the question of damages was not before the court. Even if the plaintiff were misled by the statement of Justice Steckler that, in his view, the controlling question in the case was is or is not the defendant a common carrier ? we should not feel called on to reverse the judgment. Notwithstanding the expression of an opinion by the justice, it was in the power of the plaintiff to offer proof of the damages he had sustained, and if he refrained from offering such proof because he thought that on the question of law he was almost certain to succeed, he has no right to ask that his error of judgment shall entail the consequences of a second trial upon the defendant.

We are satisfied that the judgment of affirmance is correct. *66The plaintiff has his action against Duckworth, and he is the party with whom the matters in controversy ought to be litigated. By suing the defendant, the plantiff may evade the real merits of the controversy, and escape the trial of the question, did the clothes fit Duckworth reasonably or not? The plaintiff is now attempting to make the defendant liable to pay for the clothes even though they were utterly unfit to be worn, and though Duckworth had a lawful right to refuse to accept them; and this because a helpless hoy did not force Duckworth to pay for the clothes that were returned on the. 'ground that they did not fit.

Motion for reargument denied, with costs.