concurring :
There was ample testimony of a positive nature that there were $1,100 in the envelope when the plaintiffs delivered it to the defendant’s agent at Portage for transmission to Altoona, and that there were only $996 in it when it was delivered to the consignee. Notwithstanding this testimony it is contended that the court ought to have given binding instructions for the defendant. This conclusion is based on the premises, first, that it is an admitted fact that no part of the money could have been taken out of the envelope in the course of transmission after it was sealed with sealing wax; secondly, that the plaintiffs are estopped to deny that the envelope was sealed in the presence of the member of the firm who delivered it to the defendant’s agent. If either one of these premises be unsound *199the court was right in refusing to give binding instructions for the defendant. I am of the opinion that neither is sound, and will briefly suggest the reasons which have led me to the conclusion, in which the majority of the court concurs, that none of the assignments of error excepting the first can be sustained.
Grant that the wax seals, which were upon the package when it reached the consignee, appeared to be intact, it is not beyond the range of possibility that the package had been opened in the course of transmission, and resealed in such manner as to prevent detection upon such examination as these witnesses gave. It would have been more satisfactory if the defendant had produced the envelope which was shown to have been delivered to its agent or employee after it had been opened by the consignee at Altoona. But apart from this consideration, the oral testimony was such that the court could not declare it to be an admitted or undisputed fact that the contents were in the same condition when it was received at Altoona as when the seals were placed upon it at the place of shipment.
Nor would the court have been justified in charging the jury that there could be no recovery unless they found that the money was abstracted from the envelope after the wax seals were placed upon it. True, the plaintiff signed the printed statement indorsed on the envelope that it was sealed with wax in his presence, and his oral testimony in opposition to this ought to be closely scrutinized by the jury. Perhaps the court would have been warranted in saying to the jury that it ought not to be accepted unless they were clearly convinced that it should prevail over his written declaration. But it is to be borne in mind that the terms and conditions on which the company agreed to carry the package, and to which the plaintiffs agreed by acceptance of the bill of lading, are set forth in the latter paper, which was at once a receipt and a contract. The correctness of the statement indorsed on the envelope which was signed by the plaintiff was not included in these terms and conditions. I am warranted in saying, therefore, that it was not a term or condition of the contract on which the package was shipped. Further, it is to be noticed that according to the testimony of the defendant’s own witness the wax seals had not been placed on the envelope at the time the statement was signed and the envelope was delivered to the defendant’s *200agent. The question, therefore, in dispute between these parties was as to whether it was sealed in the plaintiff’s presence after he had delivered it to the defendant’s agent, and before the latter had delivered to the plaintiff the bill of lading. This being so I am unable to agree that the statement estopped the plaintiff from showing the truth as to this matter of fact in dispute. But even if it must be presumed, contrary to the fact which a jury might find from the testimony, that the envelope was sealed with wax in the plaintiff’s presence, it does not necessarily and conclusively follow that it must be presumed to have been so sealed at the very instant it was delivered into the hands of the defendant’s agent, and, therefore, that the contents were not disturbed in the meantime. -It was not incumbent on the plaintiff to show at what period of time between the delivery of the package for transmission, and its delivery to the consignee, the money was abstracted. The whole question was for the jury under appropriate instructions as to the weight to be given, in the first place to the plaintiff’s written statement indorsed upon the envelope, and in the second place to the appearance of the seals upon the envelope at the time it was received at Altoona.