delivered the opinion of the Court:
On the trial of the issues in this cause the defendant relied upon a supposed contract on the part of plaintiffs, springing from the fact that plaintiffs had accepted a receipt, in which it was provided that in want of a statement of value in the receipt the liability of defendant should not exceed $50 for each bale or package, and upon circumstances and testimony tending to show that this provision in the receipt was known to, and assented to by, the plaintiffs. Defendant also relied upon the alleged fact that the valuation was omitted from the receipt by plaintiffs for the fraudulent purpose of concealing the fact that part of the furs were fine furs, so that they might escape the payment of that part of the rates on fine furs depending upon the value. To meet these positions plaintiffs relied upon the alleged fact that they had made a special agreement with one Hopkins, the agent of defendant, that they might ship fine furs, as well as coarse, at the rate of three dollars per hundred pounds, without any additional charge on fine furs of a per cent upon their value. This allegation was stoutly denied by defendant. On it the testimony is contradictory. It ivas a vital and closely contested question. Its determination would, from its bearing upon the turning points of the case, necessarily be, and was, very important.
Upon this vital question, Nathan Weil, the agent of the plaintiffs who filled out the body of the receipt for the signature of the express company, as a witness, on cross-examination, having testified that he, in filling up the receipt, had erased from the printed blank the words “valued at, ” etc., in the receipt, and having testified that prior to March 20, 1872, plaintiffs had put a valuation on furs, and paid a charge thereon to the express company, but not for nearly a year before that date, plaintiffs’ attorney asked the witness, against the objections of defendant, “Why ?” and he answered, because he ivas “told by Mr. Boskowitz not to do it;” and, against like objection, testified Boskowitz told witness “he had an understanding with the express companies that we were to pay no valuation charges; * * * that such ivas his understanding with Mr. Hopkins, ” (the agent of defendant,) “that he was to pay no valuation, ”—and to the ruling of the court in admitting proof of what Mr. Boskowitz had told witness, defendant excepted. This was clearly error. It is not perceived upon what ground the declarations of one of the plaintiffs, not made in the presence of defendant, or constituting any part of the res gestee, could be allowed as proof against defendant. This proof had an important bearing upon a closely contested question of fact in the ease, and must have had much weight with the jury in determining in favor of plaintiffs the conflict between the testimony of one of the plaintiffs on the one hand, and that of Hopkins, Colvin, and others, on the other hand. This was a vital point in the controversy, and for this reason alone the judgment in this case must be reversed.
It is proper, however, to notice other rulings on this trial. On the upper left hand corner of the receipt given for these furs was a memorandum, when put in evidence by the plaintiffs, thus:
170
180
350 = 2 bales mink. J. & A. B. 1
185 = 1 skunk. A. & B. j
535
Weil, a witness for plaintiffs, had stated that this memorandum was put on this receipt before it was sent to the express office for signature. On cross-examination this witness had testified the weights of such packages were kept in the receipt book, and such weights were “most always” put on the receipt books. Peterson, who signed (for the company) the receipt given for these furs, testified for defendant that to the best of his knowledge that memorandum was not on that receipt when he signed it. He was asked whether or not it was customary for Boskowitz & Co., according to his observation, to put their weights on their receipts. The court ruled that he should not be allowed to answer this question, and defendant excepted. We think he ought to have been allowed to answer the question, as a contradiction of the witness Weil. This witness had been in the service of the defendant company for many years, and for a long time had been the receiving clerk of the company when these goods were shipped. It was a question in dispute whether that memorandum was on the receipt when he signed it. Weil had sworn for plaintiffs that he “most always” put the weights on the receipt. It certainly was competent to contradict him in that regard, and to that end prove that such a thing was not usual.
The instructions given to the jury, as a whole, were misleading, and in some respects palpably erroneous. The second ■instruction, given at the request of plaintiffs, was palpably misleading, and unwarranted. It was misleading to say that the receipt contained on its face no agreement for an exemption from liability. between plaintiffs and defendant, and it was misleading to assume that the exemption in the receipt was-contained in a “contract with the United States Express Company.” The only parties to the receipt are appellees and the Adams Express Company. The United States Express Company, on the face of the receipt, talcing it ever so literally, in no manner appears as one of the contracting parties. If the word “said,” in the receipt, immediately preceding the words “United States,” were stricken out, that provision would, on its face, purport to be a contract between the Adams Express Company and appellees in relation to the liability of the United States Express Company; but it does not now, nor would it even then, purport to be a contract to which the United States Express Company is a contracting party.
When this case was before this court on the appeal of J. & A. Boskowitz, it was held that there is in this receipt, on its face, such an ambiguity that as a matter of law it could not be held that this exemption related to the Adams Express Company,—that whether it did or not must depend upon proof of the circumstances under which the contract was made. It does not follow that the receipt, on its face, is a contract with the United States Express Company. The proposition that the court had no warrant to declare, as a matter of law, that this provision in the receipt was a contract in relation to the liability of the Adams Express Company, does not at all sustain the proposition that as a matter of law the contract does not relate to the liability of the Adams Express Company. The proofs tend strongly to show that by the phrase, “said United States Express Company,” the parties meant the Adams Express Company. The United States Express Company had not been mentioned above, and the Adams Express Company had been mentioned. When, therefore, the phrase, “the said United States Express Company,” was used, it needed explanation from the circumstances. Either the word “said” must be rejected, or the words “United States” must be taken as a misnomer, wherein the parties called the Adams Express Company by a wrong name. The law, in the absence of proof, does not determine this question either way. What is the true intent of the parties giving or receiving this receipt, must be determined by circumstances to be proved. It was therefore error to declare, as a matter of law, this to be a contract with the United States Express Company, as much, at least, as it was to declare that, as a matter of law, it was the contract of the Adams Express Company. It was held when this case was heretofore before this court, that whether this provision was or was not in fact a contract between appellant and appellees, depended upon matter clehors the writing. The matters depended upon proof. It was for the jury, and not for the court, to determine the truth as to matters outside of the writing.
By the fourth instruction the jury were told, in substance, that although the valuation clause in the receipt may have been known to plaintiffs, and though plaintiffs may have known that defendant intended it to apply to the Adams Express Company and to this transaction, and although plaintiffs may have accepted the receipt with all this knowledge, and without objection thereto, and although they,had agreed to pay a valuation charge on fine furs, and still omitted to state the valuation, all this would not he a fraud, and in the absence of fraud would constitute no defence. The terms of the instruction are at least calculated to convey that idea, and the instruction ought not to have been given.
It is not necessary to pass upon other alleged errors. Eor the errors indicated the judgment of the Appellate Court is reversed, and the cause remanded, that the judgment of the trial court may be reversed and the cause sent back for a new trial.
Judgment reversed.
Mr. Justice Scott : I do not concur in this opinion.