#### A. G. Edwards, Appellee, v. The American Express Company, Appellant.

Conversion: express companies: identification of shipment: defenses. Where the agent of an express company, in attempting to identify and select goods for shipment, at the request of the owner, hy mistake takes the property of another and the same is forwarded and lost, the company is liable to the owner in an action for conversion. And it is no defense that the property consisted of a gambling device and therefore of ■no value which the law recognizes, in the absence of proof as to the manner in which the same was used or that it had been employed in unlawful practices.

*745
      *-Appeal from Marshall District Court.*— How. Obed Cas-well, Judge.

Thursday, October 8, 1903.

The opinion states the *case.*

AMrmed.

*JBinford & Snelling*for appellant.

*J. M. Whittaker*for appellees.

Weaver, J.

Plaintiff alleges that in the spring of 1901 he was the owner of a certain “musical instrument” ■of the value of $200, at Marshalltown, Iowa, which property the defendant, by its agents and employes, wrongfully 'took and carried away, and has failed to return or account -therefor, and judgment is asked for the damages thus •occasioned. The defendant answers that it is engaged in "business as a common carrier, and that at the time mentioned in the petition one McArthur caused to be delivered to defendant at the Tremont Hotel two packages, said to •contain one slot machine each, and at the direction of said McArthur defendant transported and delivered the same "to one Schaefer in Chicago, Ill. It is further averred that said packages were received, shipped, and delivered in good faith, without any notice of the claim of plaintiff to any of said property, and that such notice was not received until after the property had passed from defendant’s possession, and it was no longer within its power to return the same to plaintiff. The district court rendered judgment in plaintiff’s favor for the value of the machine, and defendant appeals.

The presumption which supports the judgment of the trial court in an action at law requires us to give the ap-pellee the benefit of the most favorable construction which can fairly be placed upon the testimony. The record will justify the conclusion that at the time in question there *746were three slot machines temporarily stored in the basement or baggage room of the hotel, although there is testimony to support a finding that but two of those three-were in this room; the third being in another room on the same floor. Two of the instruments belonged to Mc-Arthur and one to the plaintiff. On February 21, 1901,. McArthur, being át,Des Moines, wrote defendant’s agent at Marshalltown: “Kindly ship to Peter J. Schaefer,, Chicago, Ill., two slot machines; the one that was returhed. from Tama and the other you will find at the Tremont Hotel.” The reference in this letter to the.“one returned from Tama” appears to have been understood as directing attention to a machine which had been received for Mc-Arthur from that place and had been delivered by defendant at the hotel. On receipt of the letter the agent gave it to defendant’s driver, and directed' him to go to. the hotel and get the machines therein called for. The-driver applied to the landlord or manager of the hotel,, and, being told that the machines were “down in the-baggage room,” went to the place designated, and, finding two slot machines there (and only two, according to-his statement), took them to defendant’s office, where-they were billed and shipped to Chicago. On March 5,, 1901, McArthur, having discovered that one of the machines shipped to Schaefer belonged to plaintiff, notified defendant’s agent at Marshalltown of the mistake, and asked to have the right instrument obtained from the-hotel and forwarded to same address, which was done-accordingly. Plaintiff’s machine was never returned.

The appeal is based principally upon the proposition laid down in Hutchinson on Carriers (2d Ed.) section 115, to the effect that a common carrier “accepting goods for carriage in good faith from a person not the owner, but in apparent control of them, and able immediately to assume the actual custody of them, and after carriage to the destination delivers them again to such person, is not *747liable to the true owner as for conversion.” The principle here announced may be conceded to its ' fullest extent without requiring a reversal of the judgment in this case. Neither the plaintiff nor McArthur, nor any other person having apparent possession or control of this machine, delivered it to the defendant. Its agents — acting, it is true, in entire good faith —undertook, in excess of its ordinary duties as common carrier, to select and identify the machines as called for by. McArthur’s letter and in so doing unfortunately took one belonging to plaintiff. If A, having a horse feeding in the same pasture or stable with the horse of B, requests a carrier to get his animal, and ship it to another place, and the carrier by mistake takes possession of the animal belonging to B, it would be a. hard rule, indeed, which would deny the latter any remedy against the party by whose error or trespass his property has been lost. The mistake in the present case was not chargeable to McArthur, for he did not direct defendant to ship this machine. Neither was it chargeable to the hotel proprietor, who did not attempt to select or point out the machines belonging to McArthur. Still less can it be said that plaintiff himself was in any manner to blame for the confusion by which he has been made to suffer damage. The judgment of the district court has sufficient support in the record.

It should also be said the answer alleges that the machine in controversy was a gambling device, and therefor without any value which the law will recognize. This plea is mentioned in argument, but no reason or authority is urged in its support. The machine is described by the witnesses as a “musical black cat,” having “jack pots in it,” and is said to be “what is known as- a gambling machine.” It is also shown to have had at that time a market value of $150 to $200. No fact is stated as to the manner in which the device is used or operated, nor is it shown ever to have been employed in gambling or other *748unlawful practices. We know of no law which will justify us in saying the owner of such property is without redress against the person who deprives him of it. A cold chisel may be a burglar’s tool, yet has a legitimate use and value; cards and dice are employed in gambling, yet are not denied a place among legitimate merchandise; and, so far as has yet been revealed to the court, there may be some honest and harmless employment for a'“musical black cat with jack pots in it.”

There appears to be no reversible error in the record, and the judgment of the district court is aeeirmed.