States Express Co., simply writing over the printed words "United States," at the head of the receipt, the word "American" and in shipping by the Adams Express Co., appellees' clerk used either a blank printed for use with the United States, or a blank printed for use with the American, by simply writing the word "Adams" over the words "United States," or the word "American," at the head of the receipt, according to which form happened to be at hand. These receipts were not usually cut or torn from the book, when used, but were filled up by appellees in the book, and signed by the agent of the express company in the book, and the book containing the receipts which had been signed, and also blanks for further use, was returned to and kept by appellees. This, by the testimony of appellees' witnesses, was the usual course of the business. On March 20, 1872, appellees sent from their house in Chicago three packages of furs to the Adams Express Co., to be shipped to New York City, and sent with them the receipt book containing receipts and blanks for receipts in forms printed for use with the United States Express Co., and in that book a receipt for these three packages, filled up in the name of the Adams Express Co. The goods were received by the Adams Express Co., and the receipt, as filled up by appellees, was signed in the book by Peterson, the shipping clerk of that company, and the book was returned to the appellees. The body of that receipt, so far as is material to this case, was as follows, the words italicized were in writing, and the other words in print: "ADAMS EXPRESS COMPANY, 'CHICAGO, March 20, 1872. "Received of J. & A. Boskowitz three (3) bales, said to contain Peltries, valued at dollars, and marked J. & A, Boskowitz, No. 38 Mercer Street, New York, which we undertake to forward to the nearest point of destination reached by this company only, perils of navigation excepted. And it is hereby expressly agreed that the said United States Express Co. are not to be held liable for any loss or damage except as forwarders only, nor for any loss or damage of any box, package or thing for over $50, unless the just and true value thereof is herein stated; nor for any loss or damage by fire. . . . "For the proprietors. Peterson, Agent." The three bales were placed in the express car, in a passenger train on the railroad, which left Chicago on the evening of that day for New York City. The next morning, before day, at a point near Fort Wayne, Indiana, the train was thrown from the track by reason of a broken rail, and the cars at once took fire, and all save one were burned. The express car containing these bales of peltries, with all its contents, was burned. This is an action of assumpsit brought by appellees, against appellant, to recover the value of these furs. The action was begun in April, 1872. The appellant pleaded, denying its liability. On a trial in January, 1874, a verdict was rendered for the defendant, which, on motion, was set aside, and a new trial granted by the Superior Court of Cook county. The issues were again tried in November, 1874, when a verdict was again rendered for the defendant, and again that court granted to the plaintiffs a new trial. A third trial was had in May, 1875, in which a verdict for plaintiffs was rendered, and their damages fixed at $50, and judgment went for that amount. Plaintiffs appealed from that judgment to this court, and upon a hearing here that judgment was reversed. (The case is reported 93 III. 523.) The cause was remanded, and in May, 1880, there was another trial, in which the jury failed to agree. In October, 1881, the issues were again tried, and a verdict rendered for plaintiffs, and damages assessed at $12,768. Appellant moved for a new trial. Appellees thereupon entered a remittitur of $4651.32, and the court refused a new trial, and rendered judgment against appellant for $8117.45, and costs. This judgment, on appeal, was affirmed in the Appellate Court, and the case comes here on appeal from that judgment of the Appellate Court. Messrs. Wm. H. and J. H. Moore for the appellant. DICKEY, J.-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 was 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 was "told by Mr. Boskowitz not to do it;" and, against like objection, testified that Boskowitz told witnéss "he had an understanding with the express companies that we were to pay no valuation charges; . . . that such was 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 declaration of one of the plaintiffs, not made in the presence of defendant, or constituting any part of the res gestæ, could be allowed as proof against defendant. This proof had an important bearing upon a closely contested question of fact in the case, 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 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 plaintiff that he "most always" put the weights on the receipts. 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 Co." The only parties to the receipt are appellees and the Adams Express Co. The United States Express Co., on the face of the receipt, taking 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 Co. and appellees in relation to the liability of the United States Express Co.; but it does not now, nor would it even then, purport to be a contract to which the United States Express Co. 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 Co.,-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 Co. 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 Co., 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 Co. The proofs tend strongly to show that by the phrase, "said United States Express Co.," the parties meant the Adams Express Co. The United States Express Co. had not been mentioned above, and the Adams Express Co. had been mentioned. When, therefore, the phrase, "the said United States Express Co.," 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 Co. 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 Co., as much, at least, as it was to declare that, as a matter of law, it was the contract of the Adams Express Co. 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 dehors 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 Co. 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 be 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. For the errors indicated the judgment of the Appellate Court is therefore 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. See Graves v. Lake Shore & Michigan Southern Ry. Co., infra; Texas Express Co. v. Scott, and note, infra. GRAVES v. LAKE SHORE AND MICHIGAN SOUTHERN RY. Co. (Advance Case, Massachussetts. March 4, 1884.) If a shipper voluntarily represents and agrees that the goods delivered to a common carrier are of a certain value and the carrier is thereby induced to grant him a reduced rate of compensation for the carriage, such shipper is bound by his representation and agreement. A railroad company received certain wines for transportation, giving a bill of lading in which it was stated that the wines were shipped at an agreed valuation of $20 per barrel." The wines were lost in transit by the negli |