The justice was undoubtedly satisfied by the evidence that the plaintiff practiced no fraud on the defendant; and that it was understood, when the receipt was given, that it bound the defendant to carry the goods then in the cradle, as well as the cradle itself, to Owego. And the evidence authorized the conclusion, arrived at by the justice, that the defendant’s agent and servants, who received the goods from the plaintiff at Hew York city and shipped them, were informed by the plaintiff, when they received the same, that the cradle contained the valise and other articles, which were lost and never delivered to the plaintiff at Owego. It is probable that they inquired when they received the cradle, wrapped up in a piece of carpet and bound with cords, whether any thing was *326in it, and if so, what; and if they made such inquiry the plaintiff undoubtedly told them what articles were in the cradle, as one of his witnesses testified he did.
The valise and other articles in the cradle were not mentioned in the receipt which the plaintiff took from the defendant’s agent when he delivered the goods to the defendant at New York city. The receipt only showed that the defendant received one cradle to carry to Owego; but the cradle was hollow, and it had a piece of a carpet fastened around it; and those who handled it and weighed it could probably tell whether any goods were in it, as well as they could tell whether a box is empty or contains goods, by handling and weighing it. But it is unnecessary to draw inferences upon this question; for the decision of the justice establishes the fact that the defendant’s agent and servants knew the cradle contained the valise and other articles, when they received it and agreed the defendant should carry it to Owego.
Now conceding that the receipt was in the nature of a contract, (see 2 Cowen & Hill’s Notes, 1439; 14 Wend. 26; 18 Barb. 32;) it was proper to construe it in the light of .surrounding circumstances. (Hasbrook v. Paddock, 1 Barb. S. C. Rep. 635.) Hence it was competent for the plaintiff to show what kind of a cradle it was, and its condition when received by the defendant at New York city; also that it contained the valise and other articles; and that the defendant’s agent and servants were informed thereof when they received it. (9 Barb. 477. 1 Wright’s Ohio R. 240.)
When the justice was placed by the evidence, so that he could see the transaction as it appeared to the plaintiff and the defendant’s agent at the time the receipt was executed, he easily discovered that the cradle might contain articles inside of it, as well as a box or trunk; and the evidence warranted the inference that it was customary for the defendant’s agents and servants., in giving receipts for boxes or chests containing goods to be carried by the defendant, to designate them boxes *327or chests,- without mentioning what they contained, or that they contained any thing.
[Broome General Term, January 5, 1858.Gray, Mason and Balcom, Jtistices.]
Á receipt hy a common carrier for a box, to be transported to a particular place, does not necessarily mean an empty one; nor does evidence contradict a receipt for “ one eradle,” which shows that it was an article of household furniture, and was hollow, and had a piece of a carpet fastened around it with cords, and contained a valise and other goods. Such evidence only explains what was uncertain by the language of the receipt, and applies the receipt according to the intention of the parties.
And I am prepared to hold, in cases free from fraud like this, that a receipt given by a common carrier for a barrel, box, trunk or other article, shown to be hollow añd to contain goods, means that the party who executed it has received the contents of the barrel, box, trunk or other hollow article, as Well as the article itself: and it follows that when the defendant’s agent signed the receipt, agreeing to carry the cradle from Hew York city to Owego, knowing what it contained, it bound the defendant to carry, not only the cradle but also the goods then in it, to Owego.
I am of the opinion that the justice committed no error in receiving the evidence objected to by the defendant’s counsel, or in giving the judgment against the defendant; and that the county court did right in affirming his judgment. The judgment of the county court should be affirmed, with costs.
Mason, J., concurred in affirming the judgment.
Gray, J., dissented.
Judgment affirmed.