Opinion of the Court, by CURTIS, Ch. J.

bill, when he would sometimes say: "I can't do anything to-day," or would answer affirmatively when asked by witness if he should call again. But as the defendant was at this time the executor of Mr. Cambreleng's estate, it may have been that he was answering in that capacity, especially as the plaintiff was seeking to collect this same claim from that estate, and to its liability for which no question was raised. It appears that this estate was insolvent.

The defendant testified, that he did not order these plants or flowers, and that the only transaction he ever had with the plaintiff's firm, was the purchase of a boquet, fifteen years previously, which he paid for; that he never authorized the trusting of his wife, or knew of it; that no bill was made out to her until after her father's death; and that she attended to her father's commissions, he being advanced in years, such as making purchases for the house; and that he had heard him direct her to go and order plants, but that he never knew her to do so except for her father. The defendant also testified that no bill was ever made out against him, and that when he first received the bill made out against his wife, he notified the plaintiff that it was improperly made out against her, and that it should be made out against Mr. Cambreleng.

In examining the testimony of the plaintiff (for it will be observed that the case rests chiefly upon the testimony of the two parties), there are some circumstances that do not tend to sustain the statements of the plaintiff at the trial. For instance, the defendant, on June 23, 1873, wrote plaintiff's firm the following letter:

"NEW YORK, June 23, 1873.

"Messrs. BRIDGEMAN & Co.

"Dear Sirs: I am not aware that any of the articles in your bill were ordered for me or on my credit. Your bills have always been made out, rendered to,

Opinion of the Court, by CURTIS, Ch. J.

and paid by Mr. Stephen Cambreleng, and were for work done in, and plants furnished to his garden and conservatory, No. 35 Great Jones street, which plants were appraised as part of his estate. There was a bill for these very articles rendered in Mr. Cambreleng's lifetime, made out to him, as every bill ever rendered by you was made out to him, and the only account ever kept by you was with him. I shall resist firmly any attempt to make me liable for any goods or labor furnished or alleged to have been furnished by you to Mr. Cambreleng, or for his house and garden. Your claim, if any, is against Mr. Cambreleng's estate, and has been already made against his estate.

"Yours truly,

"J. PYNE."

In answer to that note, the case admits that the plaintiff sent the following letter:

"JOHN PYNE, ESQ.

"NEW YORK, June 26, 1873.

"Dear Sir: You have mistaken the tenor of our note,

in supposing that we expected to make you liable for the bill. Not at all. The bill is, as you say, against the estate of Mr. Stephen Cambreleng, and the reason why we wrote and sent to you, was for the reason that knowing you to be one of the executors, you might be able to satisfy us in regard to the payment; as being very short at present, and having waited so long, we thought that probably the estate was in such a condition now, as to admit of the payment of the bill. We hope you will consider us right in this matter, and as soon as the estate will be in a condition for payment, notify us, and you will greatly oblige "Yours respectfully,

"BRIDGEMAN & Co."

This last communication appears to be an explicit

Opinion of the Court, by CURTIS, Ch. J.

disavowal of any claim against the defendant personally for the bill, and was written at a time when the facts were fresher than at the trial, in the memory of the plaintiff. This seems to bring the case within the principle, that where a party's oath is flatly contradicted by his own letters written long previous to the commencement of the action, it is entitled to no consideration (Boyd v. Colt, 20 How. Pr. 384).

The next circumstance affecting the plaintiff's testimony, arises from the affidavits made by him in the usual form, September 1, 1873 (two months and more after writing the last letter), to substantiate his claims upon the estate of Mr. Cambreleng. By these, he confirms under oath his statement in the letter, that this bill in controversy was a claim against the estate of Mr. Cambreleng. The plaintiff stated at the trial, that he knew the claim was against Mr. Pyne, and believed that he had no claim, against Mr. Cambreleng, none whatever, but that he made the affidavits at the defendant's request, and that he took the latter to be an honorable man, and that on his statement that he would get some money, he felt justified in making the affidavits.

It is probably not the first time that a claim has been sworn to and presented against the estate of a deceased person from that motive, but I am not aware that any court has held it a justification for a knowingly false affidavit.

There are some other features in the case, that strengthen the defendant's testimony, that the bill was Mr. Cambreleng's, besides the letter and affidavits of plaintiff. It is conceded that, in July, 1871, Mr. Cambreleng's note at ninety days for $220.90, being for a part of this bill, was taken by the plaintiff, and subsequently protested.

Plaintiff's firm had attended to Mr. Cambreleng's garden, and supplied plants for his house and conser

Statement of the Case.

vatory for a long term of years, before the bills in question were incurred, and these latter were originally made out in his name. No charge appeared on the plaintiff's books against the defendant personally.

The case presented is one where the court must pass upon the weight of conflicting evidence (Finch v. Parker, 49 N. Y. 1). The result of the examination is a conviction that the verdict of the jury cannot be sustained.

Under such circumstances the judgment must be reversed, and a new trial ordered with costs to abide the event.

SPEIR, J., concurred.

ELISE MAGNIN, AND OTHERS, PLAINTIFFS AND APPELLANTS, v. WILLIAM B. DINSMORE, PRESIDENT OF THE ADAMS EXPRESS COMPANY, DEFENDANT AND RESPONDENT.

CARRIER AND SHIPPER. THEIR RELATIONS, &c.

A concealment by the shipper of the true value of the goods shipped, or his silence alone, discharges the carrier from liability for ordinary negligence (See this case in court of appeals, 62 N. Y. 35 to 46).

The court of appeals declined to hold, however, in this case, that such an exoneration would reach the defendant (the carrier), where his acts, or those of his servants and agents, in relation to the goods, amounted to misfeasance or abandonment of his character as carrier, but reversed the judgment and ordered a new trial on the point stated above.

On the new trial upon the same record and evidence, the court charged the jury that if the loss occurred through gross negligence, or misfeasance in regard to, or abandonment or conversion of, the property by the carrier, he was liable. The jury found

Opinion of the Court, by CURTIS, Ch. J.

a verdict against the carrier for the full value of the property. The judgment entered was reversed on appeal by the general term of this court, because of error in the charge, and a new trial ordered. On this last trial the verdict for fifty dollars, and the judgment thereon was in accordance with the views of this court at general term, as it interpreted the decision of the court of appeals, and is now affirmed, but leave given to the defendant to appeal therefrom to the court of appeals.

Before CURTIS, Ch. J., and SPEIR, J.

Decided January 2, 1877.

Appeal by the plaintiff from the judgment entered upon the verdict, and from the order denying a new trial on the judge's minutes.

The action was brought by the plaintiffs, to recover the value of a package entrusted to the defendant's care for transportation to Memphis, Tenn.

The facts, and the history of the case, appear in 35 N. Y. Super. Ct. (3 J. & S.) 182; 53 N. Y. 652; 56 Id. 168; 38 N. Y. Super. Ct. (6 J. & S.) 248; 62 N. Y. 35; 40 N. Y. Super. Ct. (8 J. & S.) 512.

Charles M. Da Costa, for respondent.

C. Bainbridge Smith, for appellant.

BY THE COURT.-CURTIS, Ch. J.-When this case was last before the court of appeals (62 N. Y. 35, 46), it was held that in consequence of a concealment by the plaintiff of the true value of the goods, the defendants were relieved from liability for a loss occurring from ordinary negligence; but the court expressly declined to hold that this exoneration extended to the defendant where his acts, or those of his servants, have amounted to misfeasance or abandonment of his character as carrier.

When the cause was next tried, in November, 1875,

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