(dissenting). In the complaint three causes of action are alleged: (1) Goods sold and delivered at the price of $1,124 and price not paid; (2) the sale and shipment were made by a written agreement of consignment under which defendant agreed to be responsible for any loss to the merchandise while in his possession; receipt of the goods, demand for and failure to return, and that $1,124 is due and unpaid to plaintiffs, and (3) same as second, but with the addition that the “ sale was the first business transaction of any kind had between the plaintiffs and the defendant ”,
The answer denied the vital allegations of the three causes of action in the complaint and alleged “ defendant returned the said merchandise to the plaintiffs by delivering the same to the transportation company employed by the plaintiffs in the making of the original shipment, that is, the Railway Express Agency, Inc., and pursuant to the same form of receipt as was used by the plaintiffs in making the original shipment the defendant returned the said merchandise by delivering same to the Railway Express' Agency, Inc., and accepting from the said Railway Express Agency, Inc. a receipt, wherein and whereby the value of the merchandise *726was declared in the sum of $50.00, in the event of loss as the plaintiffs themselves had previously done in making the original shipment
The first cause of action was withdrawn on the trial.
The action was tried by the court without a jury, whose brief, informal decision was for the defendant. Every findable fact and inference warranted by the evidence must be assumed to have been found for defendant. The expressed opinion does not accept plaintiffs’ testimony that Thaw, a commission buyer who gave defendant’s order for the goods to plaintiffs and who died a year before the trial, “ instructed Lobl (representing plaintiffs) to limit the insurance valuation to be placed on the furs by the carrier to $50 in view of the fact that Posner’s carried full insurance ”. The Trial Court in-his opinion stated: 1 ‘Whatever Thaw’s connection with the transaction may have been, the fact is that it was the plaintiff who shipped his own goods to the defendant on consignment and who placed a valuation of $50 upon them. That fact was invitation enough to the defendant when he returned the goods to return them precisely in the way they had been shipped to him ”, It is questionable that defendant would be bound by special oral statements if any were in fact made by Thaw. Aside from that, by reason of Lobl’s interest as a partner of plaintiffs the fact that Lobl’s paroi evidence of Thaw’s alleged oral statements was a variation of the written agreement pleaded in the complaint, not controvertible because of Thaw’s death, the court upon consideration of all the evidence in the case was warranted in the finding quoted above and in his decision for defendant. The defendant was not required to exercise more than ordinary care in reshipping the. consigned goods under the theory of negligence upon which the case seems to have been tried. He was not an insurer or indemnitor and assuredly he was not required to exercise greater care in reshipping plaintiff’s goods than plaintiffs exercised in their original shipment of the same goods to defendant.
The judgment should be affirmed, with costs.
Edbb, J., concurs with Shientag, J.; Hammeb, J, dissents in opinion.
Judgment reversed, etc.