author: By the Court.—Freedman, J. Van Vorst, J. (concurring)

text:
    ELISE MAGNIN, et al., Plaintiffs and Respondents, v. WILLIAM B. DINSMORE, as President of the Adams Express Company, Defendant and Appellant.

    An express company can not limit its liability for loss and damage, by its receipt or contract, when the loss or damage was caused by its or its servants’ negligence, or want of due and proper care of the property intrusted to its custody, and for transportation.
    The common-law liability for negligence or want of care attaches to expressmen as common carriers, notwithstanding that the value of the property exceeded the value stipulated in the contract, or the immediate cause of the loss may have been within any one or other of the exemptions named in their contract; and in every case where the carrier limits his liability by special conditions in the contract, such limit and conditions are unavailable, if the loss was caused by his negligence.
    But in all cases where the evidence shows that the loss or damage falls within the limits or conditions expressed in the contract (in the case at bar the contract provided, that if the shipper did not state the value of the property, that he would not demand a sum exceeding fifty dollars in case of loss, &e.), the onus probandi rests upon the party damaged to establish the negligence of the carrier; and where the proof of negligence rests merely upon the fact of the failure of the carrier to deliver, the party damaged can not recover more than the value of the property, as stipulated in the contract. The negligence of the carrier must be shown, and will not be presumed from the fact of non-delivery or the loss alone.
    Fraud, or concealment, or imposition on the part of the shipper towards the carrier, in regard to the character or value of the goods shipped, may be effected positively, by word or deed, or negatively, by an omission to perform a duty incumbent upon him, and, in either case, debars the shipper from a recovery from the carrier:
    1. If the facts are clear and undisputed, and sufficient to establish a fraud, concealment, or imposition by the shipper upon the carrier, in law, regardless of the intention of the shipper, the question of fraud, &c., is to be passed upon by the court, and is not a question of fact for submission to the jury.
    Before Fbeedman, Van Vokst and Speib, JJ.

      Decided December 9, 1874.
    2. But when the question of fraud, &e., depends upon conflicting evidence, or the facts proved are merely evidence from which fraud, or intent of fraud might be inferred or determined, as a conclusion derived from a variety of facts and circumstances, then, although the facts may be uncontradicted, the question of fraud, &c., is a question of fact for the consideration and determination of a jury, and the shipper is entitled to a submission of the same to the jury.
    Appeal by defendant from judgment and order denying motion for new trial. The facts appear fully in the opinion of the court.

      Charles M. Da Costa, for appellant.

      C. Bainbridge Smith, for respondents.

       This action has had three trials in this court, and has been heard and decided twice at the general term, and in the court of appeals. See the report of this case, in 35 Superior Court, 182, and 53 N. Y. 652.

   By the Court.—Freedman, J.

This action was brought by the plaintiffs, who compose the firm of Y. Gr. Magnin, Gruédin & Co., against the defendant, as president of the Adams Express Company, to recover the value of a package intrusted to said company for transportation to Memphis, Tenn., and alleged not to have been delivered.

The case has been tried three times. It was twice before the court of appeals, and we are now called upon to review the questions which arose on the third trial.

On the first trial, on which the plaintiffs had a verdict for the full value of the goods, which consisted of gold and silver watches, and gold keys, the jury were instructed, among other things, that in case of gross negligence on the part of the carriers, the clause of the special contract, which limits their liability for any loss or damage arising from a certain class of cases, and also the clause which provides, that if the value of the property is not stated by the shipper, the latter will not demand, in case of loss, a sum exceeding fifty dollars, did not exempt the carriers from responsibility for the whole amount of the goods. This instruction, the general term held, would have been correct, if the evidence of negligence on the part of the carriers had been sufficient to go to the jury. But the evidence upon this branch of the case was, under the decision in Lamb v. Cam. & Amb. Tr. Co. (46 N. Y. 271), held to-be insufficient, the'court deeming itself bound to hold that the carriers’ negligence could not be presumed from the loss alone, but had to be shown by the plaintiffs. . Plaintiffs’ judgment was, therefore, reversed ; ■ but, instead of ordering a new trial, with costs to the appellants, to abide the event, as, from the report of the case in 3 Jones & S. 182, it would seem, was done, the order finally entered provided for the reversal of the judgment appealed from, and for the entry of a judgment in favor of the plaintiff’s for the sum of fifty dollars, pursuant to the offer made by the defendants in the action. The judgment thus entered was reversed by the court of appeals (53 N. Y. 652). The ground of the decision does not appear, as no opinion was ren dered, but we have been informed by counsel that the disposition made at general term was considered to amount to a mis-trial.

Under these-circumstances, the judge who presided at the second trial felt himself bound by the decision of the general term as to the insufficiency of the evidence to establish negligence, and, consequently, the proof being the same, he withdrew this branch of the case from the consideration of the jury. The only question he submitted to them related to the delivery or non-delivery of the package at Memphis. In case they found that the package was not delivered, they were instructed to give to plaintiffs a verdict of fifty dollars, with interest. This instruction was placed upon the ground that the value of the property not having been stated by the shippers, the carriers, by the terms of the special contract entered into by the parties, were in no event liable beyond the sum of fifty dollars, and interest. The jury found a verdict for the plaintiffs for the amount to which they were limited, and the plaintiffs appealed. The general term sustained the rulings of the trial judge, and the plaintiffs appealed to the court of appeals. That court thereupon held that, inasmuch as it appeared, by proof on the one side, that the package had not been delivered to the consignees at Memphis, and that, within a year after its shipment, it had been picked up, rifled of its contents, near the shore oi Hew York, while on the other side no explanation of the non-delivery was given by the defendants, there was evidence which would have warranted the submission to the jury of the question of negligence, if that inquiry was material in determining the rights of the parties. The court also construed the special contract, and determined that, in the absence of an express stipulation, the contract could not be deemed to exempt the carriers from liability for loss occasioned by their own negligence, and that, consequently, the inquiry into such negligence was material. And, as in the determination of that question an erroneous rule had been applied, the court"ordered a new trial.

Upon such new trial, which is the one we are now called upon to review, the case appears to have been tried in strict conformity with the principles laid down by the court of appeals. The whole case was left to the jury. They were instructed to the effect:

1. That the execution of the express receipt by the company, and its acceptance by the plaintiffs, concurrently with the delivery and the receipt of the property, constituted a special contract between the parties for the carriage of the goods, and that the rights and liabilities of the parties were to be governed thereby.

2. That if they found that the goods were delivered at Memphis to the consignees, as testified to by one of the witnesses for the defense, the defendants were entitled to a verdict.

3. That if they found that there was a fraud or concealment practiced on the defendants by the plaintiffs, in the way the package was delivered to the defendants for transmission, the defendants were entitled to a verdict, though the package was not delivered.

4. That if they found the non-delivery, and also that there was no fraud or concealment, and that the loss arose from other causes than the negligence of the defendants, the plaintiffs were entitled to recover only the sum of fifty dollars, with interest.

5. But that, if the loss was occasioned by or through the negligence of the defendants, and the plaintiffs were free from fraud or concealment, the defendants were answerable for the whole value of the goods so lost.

6. And that, in such case, the measure of damages was the value of the goods at the place of destination.

These instructions are wholly unexceptionable, as propositions of law, and the applicability of all but two to the facts of this case, in the manner in which they were applied, has already been determined by the court of last resort. The two exceptions relate to the measure of damages, in case of full liability, and to the question of fraud or concealment.

As to the rule of damages, it seems to be well settled that, in an action against a common carrier, for a failure to transmit and deliver goods in accordance with his contract, the measure of damages, in the absence of a special agreement to the contrary, is the value of the goods at the place of destination, at the time they should have been delivered, pursuant to the contract, and in the condition the carrier undertook to deliver them, less the price to be paid for his services (Sturgess v. Bissell, 46 N. Y. 462; Wood v. N. Y. C. R. R. Co., 47 N. Y. 29; Harris v. Panama R. R. Co., 4 Jones & S. 373;—recently affirmed by the court of appeals). The court below charged substantially to this effect, and the finding of the jury was within the evidence given upon this branch of the case.

As to the question of fraud and concealment, the defendants insist that it should have been determined by the court, as matter of law, and that it was error to leave it to the jury. It is quite true that this point ha,s not been presented on any of the earlier appeals in this action. It is equally true that, at common law, a shipper who has been guilty of fraud or imposition upon the carrier is debarred in law from a recovery against the carrier and that such fraud or imposition may be effected positively, by word or deed, or negatively, by an omission to perform a duty resting upon him. It may also be conceded that in many, if not most cases, the question of the intent of the shipper, in such acts or omissions, is not material. If the facts are clear and undisputed, and constitute a fraud or imposition in law, regardless of the intention of the shipper, the question is to be passed upon by the court, and is not a question of fact to be left to the jury. But when the question of fraud or imposition depends upon conflicting evidence, or on inferences to be deduced from a variety of circumstances, in regard to which, though they may be uncontroverted, there is room for a fair difference of opinion among intelligent men, it must be determined as a question of fact, and the shipper may insist upon its submission to the j ury. There is nothing in the numerous authorities, cited by the learned connsel for the defendants, which conflicts with the rule last referred to. In many of these cases, the duty of disclosing the value was imposed upon the shipper by the carrier’s notice, of which he had knowledge. In others, the carrier’s notice stipulated for entire exemption from liability, in case of non-statement of value. In still others, the facts admitted of but one conclusion. Thus, in Gibbon v. Paynton (4 Burr, 2298), one hundred pounds in money were hidden in an old mail-bag. In Orange County Bank v. Brown (9 Wend. 86), it was held that the sum of eleven thousand two hundred and fifty dollars, contained in an ordinary traveling-trunk, could not be considered as part of the passenger’s baggage. In Pardee v. Drew (25 Wend. 459), it was held that a lot of fine silks, purchased by the plaintiff, and packed away in his traveling-trunk, which contained nothing else, and shipped as baggage, had no more necessary connection with the baggage or luggage which it is customary to allow passengers to carry for the journey, than the money in the case of the Orange County Bank. In Richards v. Westcott (2 Bosw. 589; 7 Id. 6), the trunk contained, in addition to the traveler’s wearing-apparel, a box of jewelry, put up for sale as merchandise; and the uncontradicted evidence showed not only that the defendants would have charged a higher price for the carriage, had they been aware that the trunk contained jewelry, but also that they would have adopted special precautions. In Warner v. Western Transportation Co. (5 Robt. 490), the plaintiff shipped on board of a canal-boat a number of cases, resembling emigrants’ chests, but which she alleged contained mostly valuable articles, including jewelry, silver-ware, laces, cut-glassware, &c. On the trial, she acknowledged not only that she had disguised the cases, but that, in doing so, she meant that they should be so disguised that no one should suspect they •contained anything valuable. This, of course, 'included the defendants, and therefore was evidence of fraud. Nevertheless, the court conceded her right, under certain circumstances, to have the question as to a fraudulent disguise or concealment submitted to the jury. And the cases of Duff v. Budd (6 Moore, 469); Brooke v. Pickwick (4 Bing. 220 , and Beck v. Evans (16 East, 244), show that, notwithstanding the shipper’s failure to comply with the carrier’s notice to declare the value, a recovery may be upheld whenever it appears that the goods were of such bulk and value that the risks of the carrier were not increased by the shipper’s omission to state the value.

The rule being as above stated, the question presents itself, whether or not the case at bar falls within it. Of this there can be no doubt. The defendants accepted the package under a special contract, which did not in express terms impose upon the shipper the absolute duty of stating its value, or provide for their exemption from all liability in case the value was not Stated, or untruly stated, but which simply declared that, if the value was not stated, the shipper should not demand a sum exceeding fifty dollars, in case of loss.. This, as has already been shown, did not include a loss occasioned by their own negligence, while, in respect to a loss arising from certain other dangers, viz: the dangers of railroad, ocean, steam or river 'navigation, leakage, or fire, the contract gave to the defendants complete immunity from all liability, unless the goods were specially insured by them, and so specified in the receipt; in which case, the amount insured Vas to constitute the limit of the liability of the defendants.

Now, it is true that the defendants gave evidence to the effect, among other things :

1. That the non-statement of the value operated to ’deprive them of a part of the reward which they'would have charged, and to which they would have been reasonably entitled, in case of disclosure of the true value.

2. That in 1863, the defendants had three departments, viz: a money and valuable package department, a paper package department, and a freight department; that if, in the month of March, 1863, a wooden box, of the size of and covered as the one in question in this suit, had been presented at the office of the company, in ¡New York, for transportation to Memphis, and the value of such box had been declared by the shipper to be between one thousand four hundred dollars and one thousand five hundred dollars, then the package would have gone into the money or valuable package department; and that in that department packages were transported in safes, locked, and sealed with a leaden seal, made for the purpose, which had upon it the impress of the particular office where it is attached, so that it could not be opened without destroying the seal; that one of the keys of the safe was kept in the office from whence the safe was sent, and a duplicate key was in the office of its destination; and that the safe was sent in charge of a special messenger, who did not carry the key.

3. That if a package of the kind described had been delivered to the company, for transportation to Memphis, in March, 1863, and no value had been stated by the shipper at the time of the delivery, it would have gone into the freight department, or the parcel department of the freight department; and that the same precautions which were taken in the money or valuable package department, as above described, were not used in the freight department.

But, at the same time the defendants were forced to admit that packages of all kinds were received at the counter of the office generally, and then placed according to their value and destination, and distributed to the several departments, with reference to their destination and their value.

The plaintiffs, on the other hand, gave evidence tending to show that the package containing the watches was delivered to, and received by, the defendants, as others had been, in the usual and ordinary course of dealing by the defendants, a,nd that no questions were asked; that the plaintiffs were importers of watches, doing business in one of the principal business streets of the city of New York, in the vicinity of defendants’ place of business; that the goods were packed in a wooden box, ten inches long, nine and seven-eighths inches wide, and five and three-fourths inches high, the wood being of the thickness of one-quarter of an inch; that when delivered to the company the box was wrapped in paper, and the outside wrapper was sealed with sealing-wax; and that from these and other circumstances the company must have seen that the box constituted a valuable package.

In view of all these facts and circumstances, the question of fraud or concealment was properly left to the jury, and, as by their verdict the jury have negatived the charge, the further question, namely, whether, in case of fraud or concealment on the part of a shipper, his action against the carrier is barred, irrespective of the question of the carrier’s negligence, is not involved in the appeal now before us.

There was no error in the instructions given or refused, or in the refusal to nonsuit, or to direct a verdict. The exceptions taken by the defendants to the admission of testimony also appear to be untenable.

The judgment and order appealed from should be severally affirmed, with costs.

Speir, J., concurred.

Van Vorst, J. (concurring)

By the contract, under which the merchandise in question was delivered by the plaintiffs, and received by the defendant’s company, to be carried, it was not absolutely required in terms that the shipper should disclose the value, but it was agreed that, if the value of the property is not stated by the shipper, the holder of the contract should not demand of the defendant a sum exceeding fifty dollars for the loss or detention of, or damage to, the property.

It has been adjudicated in this action, by the court of appeals, that the exemption from liability for the full value does not apply, although the value be not stated, if the goods were lost through the negligence of the defendants’ company. That the company has not contracted for exemption from the consequences of its own negligence. That the package was lost through the negligence of the defendant’s company has been established by the verdict of the jury.

It is now claimed by the defendant that the failure to disclose the value is a fraud in law, practiced by the shipper on the carrier, and should prevent a recovery to any amount, or, if a recovery be had, it should not exceed fifty dollars. That there was neither actual fraud nor concealment practiced, in the way the parcel; was delivered for transmission, is established by the verdict, under the judge’s charge. And it would seem, under the decision of the court of appeals, that the consequences of a failure to disclose the value do not apply to a case of negligence on the carrier’s part. Such determination would seem substantially to involve the questions now raised ; but, as it is urged by the appellant’s.counsel, that the ground now assumed by him, and taken on the last trial, was not taken iff the court of appeals, we are called upon to examine this question upon this appeal. It appears by the evidence, referred to by the appellant's counsel,, as bearing upon this point, that had the value been'disclosed, the charge for transportation would have been much greater than that actually entered and marked upon the package, and that the merchandise would have been intrusted by the defendant’s company to a special messenger, and that greater care would have been taken under the rules of the company, for the safety of the package.

It does not appear affirmatively, by positive evidence, that the shipper had actual knowledge of either of the'facts above stated.

But the appellant claims that it is to be reasonably inferred that he had such knowledge, from the fact that he had frequently, before the shipment in question, shipped merchandise by the defendant’s company, and knowledge of its rules should be presumed. The fact that they had previously shipped merchandise through its agency, would not necessarily imply knowledge, in the plaintiffs, of the internal arrangements and precautions of the defendant’s company, in their business, to secure the safety of the articles carried.

It might, however, be inferred, without evidence to the contrary, that they knew that the tariff of charges would depend upon the value of packages, as the valué was sometimes stated.

But if material, when a question of fraud is involved, knowledge of facts, to justify a conclusion of fraud, should not be left to mere inference. Fraud is never presumed, but must be proved. And besides, the clerk of the plaintiffs, who left the package in question for carriage, and who had intrusted previous parcels for the same purpose, says he did not know that there was any difference in rates, and that the package in question was delivered in the usual way.

The freight, on the package in question, was not. paid at the time it was delivered for carriage, and was to be collected from the consignee when the service was completed.

The contract in question was prepared by the defendants’ company, and signed by its agent, and was tendered to and accepted by the plaintiffs. It then became the contract of the parties.

The parties have therefore fixed in writing the terms and conditions upon which the service of the carrier was to be rendered, and declared their respective rights and liabilities in regard to the subject-matter.

The*parties have agreed upon the character, consequences, and effect of a non-disclosure of the value, at the time of shipment.

Such non-disclosure substantially casts upon the shipper, and every holder of the contract, the consequences of the loss of the package, during its carriage, to a certain limit. It also exempted the carrier from liability beyond the same "amount.

The contract does not state that the failure to disclose the value should be deemed a fraud, or work a rescission of the contract, or release the defendant’s company from all liability.

The parties having, therefore, acted upon the subject-matter, and their minds having met, as to the consequences of a failure to disclose the value, no other effect or character should be given to such omission, in the absence of any fraudulent misrepresentation or concealment, other than the parties have, by writing, agreed.

Nor should an omission which was contemplated might occur, and was provided for, be judged absolutely fraudulent, which the parties have agreed might be otherwise regarded, and be compensated for by exemption, of the person affected, from a degree of liability which would otherwise attach. Under such a contract, each party takes a certain amount of risk, by which they should be held,—the shipper, in omitting to state the value ; the carrier, by entering on the service when the value is not stated.

And in such case, since it has been decided by the court of appeals that the carrier has not contracted for immunity from the consequences of his negligence, he must take the hazard if he fails to use, or relaxes any care in respect to the carriage of a package, made up and presented under the circumstances and conditions of the one in question, which, if used, might have secured its ultimate safety.

But the counsel for the defendant urges that, outside the contract, there was such fraudulent non-disclosure of facts as should prevent a recovery for any sum.

No act can be called fraudulent, in any true sense, unless it involves a breach of some duty. Some acts and omissions are, by statute, declared to be fraudulent ; others, to be evidence of fraud. In cases when they are evidence of fraud, the intent is to be submitted to the determination of the jury, as to whether the acts were fraudulently done or omitted.

At common law, the shipper was not obliged, in the first instance, unless asked, to disclose either the nature of the contents of the package he would have carried, -or its value.

But any fraud, concealment, misrepresentation, or artifice by which the carrier was deceived, or deprived of his reward, would prevent a recovery. Good faith was required.

In not stating the value, or disclosing the contents, when no deceptive artifice or concealment was used, he was not guilty of a fraud.

If the value was demanded, however, he was called upon to answer truly.

Dinsmore, a witness for the defendant, stated on the trial that it was his custom, in all instances, to demand the value from persons presenting packages for carriage, and that he did so in this instance, and that the value was not given. He testifies from his uniform custom.

And yet the defendant’s.company, with knowledge of the omission, accepted the package, and entered upon their duty as carriers.

It is not necessary to inquire whether an acceptance, under such circumstances, is not a waiver of the omission, as the fact of a demand of the value being made is positively denied by the clerk of plaintiffs, who delivered the package for carriage. He says no questions were asked, and that the package was delivered in the manner he had delivered others.

Upon such a direct conflict in the evidence, as to whether or not the value was asked, and whether there was a fraudulent omission to disclose the same, were not questions of law, but were proper to be submitted to and passed upon by the jury, in connection with the other facts and circumstances bearing upon the questions involved.

An examination of the proceedings upon the trial satisfies me that there was no error in the refusal of the judge to charge as requested by the defendant’s counsel.

And there was no such error in the rulings and decisions made upon the trial as would justify a reversal of the judgment.

I concur with Judge Freedman, for the reasons assigned by him, and for those above stated, that the judgment should be affirmed, with costs.

Speie, J., concurs in the foregoing opinions.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    DAVID H. BURKE, Executor, &c., et al., Plaintiffs and Respondents, v. Hudson G. Wolfe, Defendant and Appellant.
    Books of account as evidence :
    1. Pass-books, kept by the employee of a firm, in its business, and which contained debit and credit entries, and purported to be a full account between the defendant and the firm, and which were for the greater part in the possession of the employee, who, as often as he saw fit, handed the same to the book-keeper of the firm, for the purpose of being written up; and said book-keeper did, in his capacity of book-keeper, make all necessary entries therein, and returned them to the employee. Such pass-books constituted accounts between the parties, that had been rendered by the firm to the employee, and, as such, were admissible as evidence, irrespective of the question as to whether the entries therein were original entries, or transcribed from other books.
    2. In regard to the books relating to the business of a firm, consisting of a day-book, journal, ledger, cash-book, and blotter, kept by a book-keeper, who testified that he had the entire charge of them, and made all the entries therein, in the discharge of his duties as book-keeper, and in the ordinary course of the business of the firm, and that such entries were correctly made, and they were the original entries, and that the greater part of the moneys charged against the employee were paid to him by said book-keeper, for, and by direction of, said firm.

      Held, that this testimony was sufficient to admit the books as evidence of the account of the firm with the employee.
    3. The rule laid down in Yosburgh ®. Thayer (12 Johns. 461), and followed so long in the courts of this State, in regard to the admission of books of account as evidence, although dissented from in the court of common pleas of New York (Conklin ®. Stamler, 2 Hilt. 422, Daly, Ch. J.), is sustained in the supreme court, in Tomlinson v. Borst (30 Barb. 42); which last case has been cited with approbation by the court of appeals (Stroud ■v. Tilton, 3 Keyes, 139). But the rule laid down in Yosburgh v. Thayer (supra), applied only to cases where the party kept no clerk, and never applied to cases where the books were kept by a clerk. Entries made by third persons always stood upon a different footing.
    4. It seems now to be the settled law of this State, that parties may introduce books of account in evidence, and a party may supply, if he can, the preliminary proof of the correctness of the books by his own oath, whenever it is made to appear that the party had no clerk; or, if he had one, that the clerk was dead. In Stroud e. Tilton (3 Keyes, 139), the admission of the books was upheld on proof of their general correctness, and of the accuracy of the charges, and of the death of the clerk who kept the books, by plaintiff’sow» oath, although it appeared that the items of the account were entered or noted, in the first instance, on slates, in the various work-rooms, and subsequently entered upon the books by the clerk.
    5. In the case of entries being made by a clerk or book-keeper, if he is living and competent to testify, he must be produced, and testify to the facts that will make the books evidence.
    1. The entry must be one which it was the duty of the clerk to make, or which belonged to the transaction, or part thereof.
    3. The person making the entry must either have had competent knowledge of the fact, or it must have been part of his duty to have known it when he made it; and there must not exist any motive to enter that transaction falsely any more than any other; and it must have been made at or about the time the transaction occurred to which it relates.
    In cases where such proof is made, the entry itself is admitted as original evidence, and part of the res gestm, and constituted an independent and original fact, to be weighed like all others in the case, whether it corroborates or impeaches the testimony of the person who made it.
    ■6. If the person who made the entry is dead, or if he is called as a witness, and has no recollection of the transaction outside of the books and entries, proof of his uniform practice to enter all such transactions truly, and at or about the time they occurred, and (in case the clerk testifies) that he has no doubt of the accuracy of the entry in question, the entry is considered sufficient as original evidence, and not hearsay, to establish the fact in question (1 Greenl. Ed. §§ 115, 117; Bank of Monroe ». Culver, 3 Kill, 531).
    7. Books of account may also be received in evidence of cash payments (Case v. Potter, 8 Johns. 163, reviewed).

      Before Freedman, Van Vobst, and Speir, JJ.

      Decided December 9, 1874.
    Appeal from judgment.
    From the year 1855, to September 14, 1869, the defendant was in the employment of his uncle, Udolpho Wolfe, as a salesman upon commission.
    Udolpho Wolfe died September 14, 1869, leaving a will, in which the plaintiffs were named as executor and executrix. They subsequently qualified and acted as such. By the will, the executors were directed to carry on the business of the deceased, and to employ one hundred thousand dollars of his capital for that purpose.
    The action "was brought by the plaintiffs, as executors, to recover from the defendant the sum of two thousand six hundred and sixty-six dollars and sixteen cents, alleged to have been drawn by him, from January 1, 1866, to September 14, 1869, in excess of the amount to which, under his contract of employment, he was entitled, for commissions and expenses.
    The answer contained:
    1. A general denial of indebtedness.
    2. Specific denials of the correctness of certain items in plaintiffs’ bill of particulars, and an offset to the amount of such items.
    3. A satisfaction and discharge of whatever indebtedness existed, by Udolpho Wolfe, in his lifetime. And,
    4. A satisfaction and discharge of the same indebtedness by the plaintiffs.
    The plaintiffs replied to the new matter in the answer, denying the same.
    The issues were tried by a referee, who gave judgment against the defendant, for one thousand nine hundred and thirty-nine dollars and sixteen cents with interest and costs ; and the defendant appealed.

      Anthon & Leeds, attorneys, and C. H. Winfield, of counsel for appellant.

      Ambrose Monell, and Elbridge T. Gerry, of counsel for respondents.
   By the Court.—Freedman, J.

Upon the trial, the defense of a satisfaction and discharge of the indebtedness sued upon, by Udolpho Wolfe, in his lifetime, was wholly abandoned; for the defendant gave no evidence tending to establish it.

As to the further defense of a satisfaction and discharge of such indebtedness by the plaintiffs, in consideration of the stay of, and the rendition of services by the defendant, in the business to be continued by them, as executors, pursuant to the directions of the testator, there was a clear conflict of testimony, and the question depended entirely upon the relative credibility of the parties. An examination of the whole evidence fails to disclose a tangible ground on which the determination of this branch of the case, which the referee has made, can be disturbed.

The referee allowed to the defendant the sum of sixty dollars, paid by Udolpho Wolfe to Mrs. Lizzie Garland, and erroneously deducted from the amount of commissions earned by the defendant, as claimed in the answer, and also the sum of fifty dollars, received by Nettie Wolfe, as to which the defendant had raised no dispute whatever.

The sum of four hundred and forty-one dollars, being the aggregate amount of sundry bills which the defendant owed to third parties, and which Udolpho Wolfe paid to them for defendant’s account, constituted, under the evidence, which the referee must be deemed to have credited, a proper charge against the defendant.

The claim advanced by the defendant, that Udolpho Wolfe had promised and agreed to contribute, and, in fact, had contributed toward the support of defendant’s mother, was not disputed ; but the evidence was conflicting as to the extent to which Udolpho Wolfe had thus obligated himself. The referee, in allowing to the defendant only six hundred and seventeen dollars on this account, adopted the version of the plaintiffs, in regard to the extent of such obligation ; and, as in the same, they were indirectly corroborated by the fact that the commissions of the defendant were increased on or shortly before January 1, 1866, the finding of the referee, upon this point, is fully sustained by evidence.

The most important question which remains to be noticed, relates to the admissibility of certain books received by the referee in evidence against defendant’s objection and exception. They consisted of the passbooks of the defendant, and of the books relating to the business of the deceased. From the whole case, it is evident that their contents must have exercised a material, if not a controlling influence over the mind of the referee; and unless their admission can be justified, on the ground that they constituted evidence per se of the claim of the plaintiffs, a new trial must be ordered.

As to the pass-books, it appeared that, for the most time, they were in the possession of the defendant; that they contained debit and credit entries, and purported to be a full account between the defendant and Udolpho Wolfe; that, as often as the defendant saw fit, he handed them to the book-keeper of Udolpho Wolfe to write them up; that thereupon the said book-keeper did write them up, by making all necessary entries therein, and did return them to the defendant; and that all the entries therein were made by such bookkeeper, in his capacity as such. These books, therefore, constituted accounts that had been rendered to the defendant, .and as such they were clearly admissible, irrespective of the question whether the entries therein were original entries, or entries transcribed from other books.

The books relating to the business of Udolpho Wolfe, deceased, consisted of a day-book, journal, ledger, cash-book, and blotter. Prior to their admission, William H. Harrison, a witness called on behalf of the plaintiffs, testified, that he had been the bookkeeper of Udolpho Wolfe, in his lifetime, and as such, had the entire charge of the said books; that all the entries made therein were made by himself, in the discharge of his duties as such book-keeper, and in the ordinary course of the business of said Udolpho Wolfe ; and that they were correctly made. He also showed that the cash-book contained, with a few exceptions, the entries of all the amounts with which the defendant had been charged in his pass-books, and in plaintiffs’ bill of particulars, furnished in this action; and that the remaining debits were to be found in some of the other books. The witness further testified, that all these charges were in his handwriting; that they were-made by him, in the ordinary course of his employment ; that they were the original entries; and that they were correct. And finally, the witness testified, that most of the moneys thus charged were paid by him to the defendant, over the counter, either in bills or checks, as directed by Udolpho Wolfe, or his partner, David H. Burke. This testimony was clearly sufficient to admit the said books.

The rule laid down in Vosburgh v. Thayer (12 Johns. 461), and followed in many subsequent cases, upon which the learned counsel for the appellant so confidently relies, to the effect that the books of a party ought not to be admitted, unless a foundation is first laid for their admission, by proof that the party had no clerk; that some of the articles charged have been delivered; that the books produced are the account-books of the party ; and that he keeps fair and honest accounts; and, this by those who have dealt and settled with him, was undoubtedly at one time the settled law of this State. But it applied only to cases in which the plaintiff, though incompetent to testify generally in his own behalf, sought to introduce entries in his own handwriting as evidence in his favor.

In Conklin v. Stamler (2 Hilt. 423), Daly, P. J., showed how this rule originated. He showed that the practice of allowing the party’s books of account to be received as sufficient evidence of the existence of the debt, came into use in this State with the early Dutch colonists, in whose courts merchants and traders were always allowed to exhibit their books of account, where it was acknowledged or proven that there had been a dealing between the parties, provided the books had been regularly kept. The parties appeared before the court, and made their own statements, and, if they differed as to a fact which the court thought material, either party might be put to his oath, and the party who made the entries could be interrogated in respect to the truth or correctness of each item. After the establishment of a State government, the practice of allowing the entries of the parties, made in the usual course of business, to be received as evidence, was recognized as a usage established by the courts of the State. But as it was the rule of the common law of England, that the party to the record could not be a witness, his supplementary oath was rejected ; and, as Lord Holt had said, that a tradesman’s shop-book was not of itself evidence, without something more, the courts undertook to supply what that “something more” should be. They therefore devised and required, as a condition precedent, the preliminary proofs insisted upon in Vosburgh v. Thayer (supra); and this rule remained in force until the passage of thact enabling a party to testify the same as any other witness. This important change obviated the difficulty that was supposed to exist; and the court of common pleas, in the case last cited, thereupon went to the length of holding that there was no longer an occasion for resorting to the books, unless it might be to refresh the party’s memory as to the items, or in cases where there is a failure of recollection: It was therefore held, that the books, except in the cases stated, could no longer be received as sufficient evidence of the sale and delivery of goods, or of the performance of services, upon proof of the preliminary facts which formerly had made them sufficient evidence ; but that the party, if he have no other means of establishing the facts, must, go upon the stand as a witness, and could be allowed to resort to his books only where it was necessary to refresh his memory as to the items, or where, from a failure of recollection, he was compelled to rely upon them alone, and could swear to what was required to warrant their introduction as evidence.

The supreme court, however, would not go to this length ; and in Tomlinson v. Borst (30 Barb. 42),it was held, that there is nothing in the statute allowing parties to be witnesses in their own behalf, which contemplates the exclusion of books of account as evidence, where the fact can be proved by the party, or which imposes the suppletory oath of the party as proof, preliminary to the admission of the books, in cases where the fact can not be proved by the party.

This case has been cited with approbation by the court of appeals, in Stroud v. Tilton (3 Keyes, 139); and the law may now be deemed settled, that the statute authorizing parties to testify in their own behalf has not deprived them of the right to introduce their books of account in evidence. It seems also settled, that the party may supply, if he can, the preliminary proof of the correctness of the books, by his own oath whenever it is made to appear, either that the party had no clerk, or that such clerk is dead. In the last-named case, the admission of plaintiff’s books was upheld, on proof of their general correclness, and of the accuracy of the charges, by plaintiff’s own oath, and on proof of the death of the clerk who had kept the books, although it appeared that the items of the account were noted in the first instance on slates, in the various work-rooms, and that they were subsequently transcribed from day to day on the books.

The examination so far made sufficiently shows that the rule laid down in Vosburgh v. Thayer never applied to books of account regularly kept by a clerk. Entries made by third persons have always stood upon a different footing. To be admissible, such an entry must be one which it was the person’s duty to make, or which belonged to the transaction, as part thereof, or which was its usual and proper concomitant. The person making it must either have had competent knowledge of the fact, or it must have been part of his duty to have known it, and there must have been no particular motive to enter that transaction falsely more than any other, and the entry must have been made at or about the time of the transaction recorded. In such cases, the entry itself is admitted as original evidence, being part of the res gesta. If the person who made the entry is living, and competent to testify, he must be produced (1 Greenl. Ev. § 115; Wilbur v. Selden, 6 Cow. 162 ; Brewster v. Doan, 2 Hill, 537). But if he is called as a witness to the fact, the entry of it is not thereby excluded. It is still an independent and original circumstance, to be weighed with others, whether it goes to corroborate or to impeach the testimony of the witness who made it. If the person who made the entry is dead, or being called, has no recollection of the transaction, but testifies to his uniform practice to make all his entries truly, and at the time of each transaction, and has no doubt of the accuracy of the one in question, the entry is considered sufficient as original- evidence, and not hearsay, to establish the fact in question (1 Greenl. Ev. § 115 ; Bank of Monroe v. Culver, 2 Hill, 531). The admission of the party’s own shop-books, kept by a clerk, stands upon the-game principles whicli have just been considered. The books must have been kept for the purpose, and the entries must have been made contemporaneous with the transactions recorded, and by the person whose-duty it was, for the time being, to make them (1 Greenl. Eo. § 117).

It is clear, therefore, that the fact that the witness Harrison, on cross-examination, admitted a want of personal knowledge as to some items, would not have authorized the exclusion of the books. The entries relating to these items were, nevertheless, made in the course of his professional employment, and he had no-motive to pervert the truth. They were, therefore, admissible on the ground that upon the points covered by them no better evidence was attainable.

But the books of Udolpho Wolfe were admissible npon still another ground. So far as they showed the amount of the commissions to which the defendant was entitled on the sales made by him, and the amount of expenses incurred by and credited to him, they were-admissible on the ground that in this respect they contained entries against the interest of the party who-made them. And in this respect they did, in point of fact, become highly important for the defense.

Nor is there any force in the suggestion that books of account can not be received as evidence of cash payments. It is true that in Case v. Potter (8 Johns. 163),. it was said that, as the demand was for cash lent, the book would have been inadmissible, if objected to at the time. But in that case the party’s own entry had been received as evidence of a single transaction, viz.: a loan of ten dollars; while, in the case at bar, the , books contain a series of entries, debit and credit, made in the usual course of the business between the parties, and extending over a long period of time; and the debit entries do not represent loans, but payments on account, which, in most instances, were also almost immediately noted in defendant’s pass-books. Such entries are admissible, on the ground that they constitute parts of a chain or combination of transactions between the parties. To exclude them, on the ground suggested, would enable the defendant to appropriate to himself the benefit of the credits appearing in his favor upon the same books, while he denies the plaintiffs the benefit of their charges.

There was no error in the reception of the books of Udolpho Wolfe, deceased. True, the defendant had no access to them, and he can not be deemed to have acquiesced in them. But the cash charges, of which he complains, were transferred to the pass-books in his possession; and as he must have known whether or not he had received the amounts charged, he should have objected to such as he deemed an improper charge. There is no evidence that the defendant ever objected to any of the items • with which the referee finally charged him. On the contrary, the evidence points strongly to the conclusion that he acquiesced in them ; and, upon the whole case, it is apparent that substantial justice has been done between the parties.

Several exceptions were taken to the admission and rejection of other evidence, but none of them appear to be tenable.

The judgment should be affirmed, with costs.

Yak Yorst and Speir, JJ., concurred.


author: By the Court.—Freedman, J. Speir, J. [dissenting].

text:
    WILLIAM H. POPHAM, Plaintiff and Respondent, v. WILLIAM J. WILCOX, and Others, Defendants and Appellants.
    Before Feeedman, Van Yobst, and Speib, JJ.

      Decided December 9, 1874.
    Teade-Maek.
    In the case at bar, plaintiff and defendants were refiners of lard, and packed the same for market, in tin vessels, each of which bore the figure of a pig, or swine, with the words, “Trade-Mark,” stamped in the metal. The plaintiff claimed this device or design of a pig, or swine, to his exclusive use, as a trade-mark to be placed upon packages of refined lard made by him, and that defendants be enjoined and restrained from using such device and design.
    It appearing, from the evidence:
    1. That, although the plaintiff claims to have used this design for fifteen years, yet, on the witness-stand, he could not tell who invented the device for use, on either crude or refined lard.
    2. That, since 1845, the figure of a pig or swine had been extensively used on packages of natural or crude lard, by many persons; and, since 1856, on packages of refined lard packed in wooden vessels; and that, from 1860 to 1868, one Brewster, a refiner, used the said device on tin boxes, although not stamped into the metal of the packages; and, for a long time past,Am 'packages had been used by the trade, for packing and shipping refined lard.

      Held, that these facts establish in the plaintiff no exclusive right to the use of the figure or device of a pig, or swine, on tin packages of crude or refined lard. There is nothing, either in the device itself, or in the combination in which it is or has been used by the plaintiff, which gives him any exclusive right to the same.
    Sfeie, J., differs widely from his associates in conclusions of fact and law. (See dissenting opinion.)
    Appeal from judgment.

      At the time of the commencement of the action, both plaintiff and defendants were, and they still are refiners of lard in the city of New York, and largely engaged in that business. The action was brought to restrain an alleged violation by defendants of plaintiff ’ s trade-mark, and for damages. The said trade-mark consisted of a device or mark, in a circular or semicircular form, containing the figure of a pig or hog, and the word “trade-mark” adjoining the same, and in addition thereto, the plaintiff’s name and place of business, and the name of the article, viz: “prime leaf-lard.” The answer contained a denial of the plaintiff’s exclusive right to use the device of a hog or swine upon packages of lard, and also a denial that the brand used by defendants is in any manner an imitation of plaintiff’s, or in any respect calculated to deceive or mislead the public.
    Upon the trial at special term, the plaintiff had judgment, and defendants appealed.

      Luther R. Marsh, counsel for appellants.

      S. F. Cowdrey, counsel for respondent.
   By the Court.—Freedman, J.

On the motion for the continuance of the injunction during the pendency of the action, it was held (14 Abb. Pr. N. S. 206), that, for the purposes of that motion, it sufficiently appeared that the plaintiff had the right to the exclusive use of the device adopted by him as a trade-mark. The rights of the parties were thereupon determined as they appeared by affidavit, and I have no hesitation in saying that in my opinion they were correctly determined upon the proof then before the court. Consequently, if the proof given upon the trial established the same facts, as appeared on the motion, and no others, the judgment should be affirmed.

But the oral testimony given upon such trial, materially changed the case previously made by the1 plaintiff.

The following facts then appeared a,nd were found' by the learned j udge who tried the cause, viz.:

I. For more than twenty-five years past, dowm to this action, large quantities of lard, in a crude or natural state, have been sent from other parts of this-country, especially from the west, to this city, and here-dealt in as articles of trade and commerce ; and during-that time there has been, in the city and neighborhood,, a business of refining such crude or natural lard. The-product of such business was, among other names, called refined lard. Refined lard is whiter and harder than crude or natural lard, and better fitted to be sent-to hot climates; but refining does not change its appearance, except to the eye of an expert. It had a, better price in market. The principal market for refined lard has been in California, the West Indies, and the western coast of South America. Down to about the year 1861, the business of making refined lard was-small; but since that time it has greatly increased, and become important. The best quality, both of crude-lard and of refined lard, has been commercially known, as prime leaf lard ; but the business of dealing in crude- or natural lard is a different one from that of making and dealing in refined lard, and the former is, in general, carried on separately from the latter. During that time, the commercial demand, here, for refined lard, has been for the purpose of shipping it to or througk tropical climates; and of crude lard, for the purpose of supplying other markets. Refined lard has been packed, for exportation, in tin and wooden vessels, but much larger quantities in tin than in wooden vessels.

II. The plaintiff has been, for fifteen years before this action, in the business of making and selling re' fined lard, and during that time has, in that business, packed the lard made by him for sale, in tin cases and pails, and in wooden kegs, tubs, barrels, and tierces, -and habitually and generally stamped or painted upon such packages a figure of a swine, together with words showing the quality of the lard: “Pig Prime Leaf Lárd,” and his name and place of business. This figure, thus used by the plaintiff, is so shaped as to represent a domesticated swine, pig, or hog.

III. In the years 1856 to 1861, both inclusive, Mr. Johnson, in this city, was interested with, first, Mr. Bird, then Mr. Robins, and finally Mr. Brewster, in the business of making and selling refined lard. In such business, the refined lard was packed for sale in tin oases and pails, and kegs, tubs, barrels, and tierces; and, upon the wooden packages, the persons specified used, in connection with their names and the words, showing the quality of lard, the figure of a pig or hog, the same being painted or stenciled upon the wood. In 1865 or 1866, the defendants, at the request of a merchant in Liverpool, who, from time to time, bought from them quantities of refined lard, painted or stenciled upon the wooden vessels, in which the lard was shipped, the figure of a pig or hog. In 1861 or 1862, a •quantity of refined lard was, by some person in Boston, offered for sale in New York, and twelve caddies of such lard was sent to this city. The caddies were wooden vessels; upon them was placed a figure of a pig or hog, on silvered paper. The figure of a pig or hog has not been used, in the trade, upon tin vessels containing refined lard. '

Upon these findings, the exclusive right of the plaintiff to the use of said figure, should at least have been confiped to its use on tin vessels; and consequently the judgment grounded thereon, which secures to the plaintiff the exclusive right to the use of said figure -upon all kinds of packages of refined lard, is too •broad, in any aspect of the case.

The next question, therefore, is whether the plaintiff acquired an exclusive right to its use on tin vessels. He claims to have used it for fifteen years; but, on the witness-stand, he could not tell who invented the device for use, either on crude or refined lard.

The evidence establishes that, since 1845, the figure of a hog or swine has been extensively used, on natural or crude lard, by many persons, as a portion of, or in combination with their brands ; that, since 1856, it has been extensively used on refined lard, packed in wooden vessels; that, for a long time past, refined lard has. been and is still shipped, by the trade, to the- South American and other foreign ports, as well in tin as in wooden packages; and that, from 1860 to 1868, Amos H. Brewster, as a refiner, used the said figure or mark on tin boxes, though not on the tin packages themselves.

From these circumstances, it is evident that the plaintiff can have no exclusive right to the use of the figure of a pig or swine, on packages of natural or crude lard, nor to its use on wooden packages of refined lard; and that the defendants can not be restrained from its use on such packages. Nor can the defendants be enjoined from refining lard, or from putting it up in tin packages. Consequently, a judgment which secures to the plaintiff, exclusively, the right of the use of the device on tin packages, would not protect the plaintiff' so much in the use of his trade-mark, as in the manner of its use. It would be the vessel on which it is used to which the protection is really extended. But tin vessels were and are in common use, by the trade, for packing refined lard, and the vessels used by the plaintiff for exportation were, by the learned judge below, found to be of the same shape and size as those in common use ; from which fact, the inference may be fairly drawn that they are common merchandise, that can be readily bought, by all dealers, in open market.

There is nothing, therefore, either in the figure itself or in the con) bi nation in which it is used by the plaintiff, which gives the plaintiff an exclusive right.

The judgment should be reversed and a new trial ordered, with costs to appellant, to abide the event.

Yak Yokst, J., concurred.

Speir, J. [dissenting].

I think the learned judge, who heard the cause, was justified in finding that the appearance of the swine, as used by the defendants,— by which I understand his device,—was such as that it was likely to lead a part of the purchasers of refined lard in the market, who had seen plaintiff’s mark, and giving the attention usual in the trade, to mistake 'the mark, of which the swine was a part, for the trademark used by the plaintiff. Especially was it likely to mislead persons who had not seen the plaintiff’s trademark, and asking for his Pig Brand, and also persons in a foreign market asking for “Marcha Chancho,” or Pig Brand, to believe that the refined lard, put under defendant’s mark, was of the kind asked for.

Upon an attentive examination of the evidence, I do not find that any of the parties engaged, excepting the defendants, in the trade of buying or selling crude or refined lard, or engaged in the business of refining lard, used or adopted, at any time, this device of the plaintiff, as a trade-mark. The figure of the pig had been, by itself, used frequently by different parties engaged in the business. Formerly, this trade was limited to dealing in lard in the crude or natural state; while the business of refining lard has been only extensively carried on within the last few years. The figure of the pig was not connected with any symbol or device, nor was it claimed as a trade-mark until so claimed and appropriated by the plaintiff. It was generally used by painting or stenciling it on the heads of all kinds of -wooden vessels, or on silvered paper; but in no instance, in any manner, connecting it with a device at all resembling the plaintiff’s. The plaintiff had been exclusively in the use of his device, as a trade-mark, for ¡some fifteen years, and up to the time the defendants were restrained from simulating it; and during that time it had become generally known and distinguished from the refined lard made by others, and had commercially acquired the name of Popham’s Pig Brand, or the Pig Brand; and, in the foreign market, by the name of “Marcha Chancho.” By whom the symbol was invented or designed, is not material; it is enough .that the plaintiff has, by the appropriation of the device, acquired a property in its exclusive use. Under the circumstances, the attempt of the defendants to produce a general resemblance of the device in shape, size, color, material, and lettering, leads to the inference that it was done with the bad intent of invading the plaintiff’s rights.

The figure of the pig alone, without the device, or the shape, size, style, or material of the vessels upon which the figure alone was placed, do not, in my judgment, determine the rights of the parties. It -is the whole symbol appropriated by the plaintiff in his business, as his trade-mark, which has secured to him a property by his exclusive use, which the court protects .against all trespassers.

I am in favor of affirming the judgment, with costs.