delivered the opinion of the court:
From the standpoint of plaintiff below the transaction considered in this action involves two contracts, viz.: the common-law contract or liability for safe transportation and delivery of the package; also a special agency contract whereby the express company agreed to collect and return .to Stair $1,040.00, or to return the package itself if the money were not -paid. The liability sned on is claimed to arise by virtue of a violation of the latter contract.
A proper regard for the distinction between the two contracts specified, or causes of action growing out of the same, will reconcile nearly all of the authorities cited, and do away with many of the differences between counsel. The arguments for appellant in this court are based almost entirely upon principles and authorities applicable to the common-*64law liability of the express company as a carrier. The arguments of appellee’s counsel on tbe other hand and the authorities cited by them rest exclusively upon the rules controlling the company’s liability as a collection agent under its alleged contract in that behalf.
This discrepancy in the arguments arises undoubtedly from the different views of counsel touching the status of the letter of instructions addressed to the defendant company in connection with the package. Plaintiff’s counsel assume that this letter wás delivered to defendant’s receiving agent, Reed; and that a special contract was entered into whereby defendant agreed either to return the deeds sent, or to collect and pay over the $1,040.00 specified in the letter. Defendant’s counsel on the other hand assume that the letter of instructions was never given to or received by defendant’s agent; they assert that no special collection contract was ever made; and hence the only cause of action that could become the foundation for this proceeding must arise from and rest solely upon defendant’s liability as a common carrier.
It would at first seem, therefore, as if a satisfactory decision of this appeal necessarily requires a determination of the question whether or not the letter of instructions was delivered to or read by defendant’s agent.
On this specific point a careful consideration of the record leaves but little doubt in our minds. Stair’s testimony that he delivered the letter to Reed and that Reed read the same stands alone. It is not supported by any other testimony or by any circumstances before us. ' Reed’s declarations that he never saw or heard of the letter are corroborated by the testimony of the witness Came. Came was one of the parties directly interested, and was present in *65the express'office throughout the transaction there; he was with Stair all of the time, and was in a position where he would undoubtedly have seen the letter delivered and read had such delivery and reading taken place.
Reed’s testimony finds additional confirmation from the affidavits filed in support of the motion for a new trial. It thus appears that before the. action was brought Came stated to his attorney that this letter was handed to him in the express office by Stair through mistake; that he put it in his pocket and kept it there, and thus prevented defendant or its agent from seeing or reading it. Judging by this record Came is not entitled to much credence; but other matters appearing in these affidavits tend somewhat to support the truthfulness of his declarations • as stated therein. And while certain collateral circumstances forbid our holding thát the court abused his discretion in denying the motion for a new trial upon the ground of this newly discovered evidence, yet it is entitled to notice in this connection.
The fact that Reed did not understand that he was making a contract for the collection of the unpaid balance of the purchase price is. further evidenced by the following circumstance: when he made out the receipt for the package he omitted to indicate therein in any manner, by words or by figures, that the package was a C. O. D. package. This receipt, which some of the cases hold constitutes the entire contract for carriage, was limited by its terms to the subject of carriage alone. And when Stair, who was a lawyer, and who was giving special attention to the collection feature of the transaction, accepted and retained the receipt in this form without objection or protest, he cannot be entirely exonerated from fault. We are not prepared to liold that, under the circumstances, he was free from negligence in not *66insisting that the collection contract or obligation be indorsed upon or represented in the receipt.
And finally Reed’s' understanding that he was receiving the package for transportation only is indicated by indorsements upon the envelope in which it was sent. "When Stair addressed this envelope and brought it to Reed to receive the enclosures, it is surprising that Reed would not have noticed the absence of the C. O. D. provision if he had knowledge that the package was to be controlled by such a provision. He would hardly have failed to call Stair’s attention to the omission and send him back to the desk .or table to address and properly indorse one of the regular C. 0. D. envelopes kept there for just such packages. Stair’s, oversight in selecting the wrong kind of an envelope, and in failing to make proper indorsement on the envelope selected, would hardly have escaped his notice. The sample envelopes in evidence with the printed indorsements upon them show just how this class of packages are sent, and the difference between the C. 0. D. .envelopes and other envelopes is so plain that it would be inexcusable for a layman, much less for a lawyer, to be mistaken in choosing.
The foregoing facts and circumstances, coupled with other matters appearing in the record, leave very little doubt in our minds touching the disposition of the letter of instructions. That Stair was entirely ingenuous in his testimony, and honestly believed the statements made by him to be true, we do not doubt. But, as we have seen, besides the contradicting testimony, a number of things indicate that he was mistaken. The conclusion is almost irresistible that Came obtained possession of this letter and surreptitiously secreted the same, thus intentionally defeating the very purpose of the visit to the express office.
*67The jurors did not have before them the evidence of Came’s treacherous conduct, disclosed by the affidavits filed in support of the motion for a new trial; with such proofs they might well have reached a different conclusion. But there is another consideration which hardly seems to have been given weight according to its importance.
Stair testified in each of the three trials of the cause. In the first two trials he stated that Reed' told him to address the envelope just as he wanted it, or according to the letter of instructions. And, while at the third trial his testimony differed somewhat in this regard, he admitted that such might have been the direction of Reed in the premises. Any discrepancy in this respect should be resolved in favor of the earlier testimony; because then the transaction was fresher in his mind and less apt to be affected by a lapse of memory.
Stair accepted Reed’s suggestion and obeyed his .instruction. lie and Came at once proceeded to address and label the envelope. And having done so, they delivered it to Reed, receiving the receipt devoid of the agency contract or feature. Stair and Came were intelligent men; the former was a lawyer of long experience and of extensive practice. He was present throughout the entire transaction and conducted the same. Reed was busy receiving and attending to .packages for other people.. Having instructed Stair to address the package just as he wanted it, and having shown him where he would find the envelopes for C. O. D. packages, Reed may have discharged the matter from his mind. He had a right to presume that Stair would exercise care and judgment sufficient to properly indorse or mark the envelope selected.
Assuming that Reed had seen and read the letter of instructions, he might have concluded when the *68envelope was delivered to Mm containing no reference thereto, that Stair and Came, had abandoned this part of their programme. As a matter of fact they remained at the desk or rack containing the envelopes some five minutes or more considering the indorsement and indorsing the envelope selected. They were the parties actually interested; Stair representing Ten Winkel, and Came representing himself ; and they alone signed the letter of instructions. They had ample time to rediscuss the subject, and to change their plans. We are not prepared to say that, if Eeed knew of the original intention of the parties, he was entirely blameless; but certainly he was not the one mainly at fault.
It is extremely doubtful if Eeed ever saw the letter of instructions. But if he did, under all the circumstances presented by the record before us, we are satisfied that Stair and Came were guilty of greater negligence in the premises than was Eeed. And it follows that appellant should not, on this record, be .held responsible for the loss, if any loss be ultimately suffered.
The judgment will be reversed and remanded for further proceedings. Reversed.
Chiee Justice Steele and Mr. Justice Bailey concur.