The written receipt of the company was given in evidence, by which the contract of carriage was established. The defendant then offered to read in evidence, an entry subsequently made by its clerk in the books of the company, as evidence of what the contract was. The judge properly excluded the evidence. Memoranda of facts, or circumstances, made by a witness at the time of the occurrence of a given transaction, are sometimes permitted to be given in evidence, to show the existence of such facts or circumstances. Thus in Marcly v. Shults (29 N.Y., 346), the offer was to read a memorandum of the width of the flush boards on a certain dam, which was a specific fact, material to the issue. In Guy v. Mead (22 id., 462), the offer was to show that, at a given time, a certain indorsement of forty dollars was not on the note, that being a material fact for the consideration of the jury. In Barker v. N.Y.C.R.R. (24 id., 599), a conductor was allowed to read an entry, made by him, of the arrival of the train at Syracuse, at a time named. (See 1 Grenl. Ev., § 436, etc.) It is quite likely that this entry was competent to be read, to show that a parcel had then been received, if that fact had been in doubt, or to show the date of the transaction, or the like. This was not the purpose for which it was offered. "The defendants' counsel claimed that *Page 469 in the absence of the original receipt (a copy having been produced) it could be some evidence in regard to it." This means, that the subsequent entry by a clerk should be received as evidence to show that the real contract was different from the written one produced before the court. If the entry sustained the written contract, as proven by the plaintiff, it was quite unnecessary. The defendant was not called upon thus to strengthen its opponent's case. The preliminaries of loss and comparison having been proved, the copy was legally of as high an order of proof as would have been the original. The entry could only be important, as evidence, to weaken or to alter the written contract already established. No case can be found, I imagine, nor any dictum, which would authorize its admission for that purpose.
The principal question arises upon the construction of the contract. The defendant, being of the class of common carriers known as an express company, undertook with the plaintiff to "forward to Dalton, Georgia, for redemption," a package of currency, amounting to $900, and it is to be liable "as forwarders only." The company, it is said, had no means of its own to transport this money farther than the city of New York. This fact, however, was not made known to the plaintiff. On the contrary, it expressly assumed, in its contract with him, the same obligation upon the contract from New York, southerly, as from Chicago to New York. It does do not say to the plaintiff that I will carry your package to New York, and from thence I will forward it by some responsible company to Dalton. It assumes the same obligation throughout the whole distance, to wit, "to forward to Dalton." The receipt on the margin expressed the same idea. "The United States Express Company will forward bank notes, gold, * * * and collect notes and accounts, daily, between New York * * * Philadelphia * * * Cincinnati * * * and other principal cities of the west and south-west." No distinction is made between its duty in carrying to New York and other cities of the south and west. It "will forward" to each place. It is conceded by the *Page 470 defendant's counsel that its liability to New York is that of a carrier, and that it is sufficiently expressed by the engagement to "forward" the package, and that it is not qualified by the expression that it is to be liable as forwarder only. There is no propriety in giving to this word two different meanings. It is the general rule that a word, when repeated in the same sentence or the same connection, is to bear the same signification. It would certainly be a violent assumption to impute different meanings at the same time to a word when used but once in a sentence. When the defendant undertakes to forward this package from Chicago to Dalton, it is a single contract. This contract is denoted by a single word, and that is the same throughout the distance. Although it was, in fact, an extension of its liability beyond its own line, I am satisfied that the defendant, by the words made use of, undertook and assumed to carry and deliver this package to its destination in Georgia. (Read v.Spaulding, 5 Bosw., 395; Place v. Union Ex. Co., 2 Hilt., 19; Am. Ex. Co. v. Hain, 21 Ind. R., 4; Wareham Bank v.Burt, 5 Allen, 113; Weed v. Sch. Sar. R.R., 19 Wend., 534; Quimby v. Vanderbilt, 17 N.Y.R., 306; Webber v. G.W.Railway Co., 3 H. C., 771.)
The defendant undertook to carry this package of money to Dalton for a special purpose; to wit, for the redemption of the same by the bank issuing it. This was a part of the recognized business of an express company. As conducted and arranged in the present day, the carrier does much more than the unintellectual routine acts to which the business was formerly confined. He is now the skillful, reflecting, confidential agent of the employer. A valuable case of jewelry is entrusted to the carrier for transportation, but only to be delivered upon one of two conditions; to wit, that the consignee pays the value thereof in cash, or that the carrier is satisfied that he is perfectly responsible for the amount. The carrier is entrusted with the collection of a note, payable at a distant point, and of which an important part of the value arises from its indorsement by a responsible man. The duty *Page 471 of the carrier is first to present the note to the maker or at the place indicated. If paid, the money is to be transmitted to the employer. If not paid, the further duty of protest and notice to the indorser devolve upon the carrier. These are now every-day contracts with express companies, are well understood, and are expressed by a single word. In the case before us the contract is of a similar character. The carrier is informed that the plaintiff has bank notes issued by a bank in Georgia, which he wishes to have presented for redemption. The carrier, for a compensation, is willing to undertake the duty. It is put in the form of a receipt, and this part of the contract is shown by the words "for redemption." Under the circumstances detailed, this amounts to an agreement to present this currency for redemption, to return the funds to the plaintiff, if redeemed, or to return him the notes, with the evidence of the refusal to pay in the event of non-payment. The bank is not a consignee. To deliver to a bank its own notes, and not require the equivalent, would be the reverse of a redemption. The essential idea of redemption of currency is that the party issuing it is a debtor, and is called upon to pay his debt by redeeming the notes presented. I think no two business men of fair understanding would disagree as to the meaning of this contract, and I doubt not that both the plaintiff and the defendant, at the time of making the contract, understood it to be as I have explained it.
Upon the whole case, I think the judge at the circuit was right, that the order for a new trial should be reversed, and that judgment should be entered for the plaintiff upon the verdict, with costs.
EARL, C., concurs with GRAY, C., upon question as to construction and effect of contract, but differs with him and concurs with HUNT, C., upon the question as to the competency, as evidence, of the entry upon defendant's books.
For affirmance, GRAY, EARL, LEONARD, CC.
For reversal, LOTT, Ch. C., HUNT, C.
Order affirmed, and judgment absolute against plaintiff, with costs. *Page 472