#### W. B. WATTS et al. v. NORFOLK SOUTHERN RAILROAD COMPANY.

(Filed 22 February, 1922.)

1. Carriers — Railroads—Action—Consignee.

The consignees of a shipment by common carrier are ordinarily the ones for whose benefit it was made and are entitled to maintain an action upon the contract, the question of title being dependent upon the intention of the parties.

3. Samé — Order, Notify — Statutes.

The person to be notified on shipment to order of consignor has, under our statute, C. S., 313, title for the purpose of a suit to recover damages and the statutory penalty, as fully as if the carrier had contracted with him direct, upon the presentation of the bill of lading properly endorsed and his tender thereof in good faith to the carrier, the statute being remedial of the common law that there was no contractual relation between him and the carrier that would permit recovery for causes accruing before he had paid the draft, and had the bill of lading assigned to him. C. S., 290, 337.

Appeal by plaintiffs from Ferguson, J., at November Special Term, 1921, Of WASHINGTON.

In July, 1920, tbe plaintiffs bought certain articles from the Farm Equipment Company of Raleigh, which delivered them to the defendant company at Raleigh for transportation to Plymouth, and issued its bill of lading to vendor. The shipment was made “Order, notify,” and the Farm Equipment Company attached a sight draft to the bill of lading and forwarded the same through the banks in the usual course of business. Plaintiffs were notified by defendant of the arrival of the shipment, and one of plaintiffs proceeded to the station of the defendant to obtain said property; on his way down he stopped at the bank, paid draft in full, and-securing the bill of lading, demanded the property from the defendant. When the car containing the shipment was opened it was discovered that certain of the batteries had been broken and destroyed. The agent of the defendant then and there told the plaintiffs to take the said batteries and keep the same subject to the order of the defendant company, thereby recognizing, as the plaintiffs claim, the responsibility of the defendant to the plaintiffs for the same. The plaintiffs filed their claim with the defendant as required by the bill of lading, and instituted this action to recover their damages on failure of the defendant to pay the same.

At the conclusion of the evidence for the plaintiffs, the court directed a nonsuit, and the plaintiffs appealed.

W. L. Whitley for plaintiffs.

Small, MacLean, Bragaw & Rodman for defendant.

*13Clark, C. J.

Tbe contract of shipment in this ease was made for tbe benefit of tbe plaintiffs, and they were entitled to maintain an action upon tbe same. Nicholson v. Dover, 145 N. C., 18; Woodard v. Stieff, 171 N. C., 83, and numerous other cases, and it is elementary that tbe passing of title in sales depends upon tbe intention of tbe parties. Teague v. Grocery Co., 175 N. C., 195; 35 Cyc., 277.

Tbe trial judge seems to have followed tbe decision in Mfg. Co. v. R. R., 149 N. C., 261, in granting tbe motion to nonsuit, which held that there was “no contractual relation between tbe carrier and tbe payee on a draft with bill of lading attached when tbe shipment is made 'Order, notify,’ and that tbe title does not pass until tbe draft is paid and tbe payee cannot recover damages to shipment sustained prior to that time nor tbe penalty for delay in transit.” But since tbe decision in that case, tbe law has been changed by legislative enactment. C. S., 290: “A carrier,.in tbe absence of some lawful excuse, is bound to deliver goods tipon a demand made either by tbe consignee, named in tbe bill for tbe goods, or, if tbe bill is an order bill, by tbe bolder thereof, if such demand is acconqpanied by: . . . (2) Possession of tbe bill of lading and an offer in good faith to surrender, properly endorsed, tbe bill which was issued for tbe goods if tbe bill is an order bill.” It appears from tbe record that tbe plaintiffs fully complied with every requirement of this act. They bad tbe bill properly endorsed, to which was attached at tbe time tbe paid sight draft, and they paid tbe freight charges demanded by tbe defendant, and tbe signed receipt for tbe goods delivered, tbe agent of tbe defendant noting thereon tbe damage.

C. S., 313, is as follows: “A person to whom an order bill has been duly negotiated, acquires thereby: (1) Subh title to tbe goods as tbe person negotiating tbe bill to him haá, or bad ability to convey to a purchaser in good faith for value, and álso such title to tbe goods as tbe consignee and consignor bad, or bad power to convey to tbe purchaser in good faith for value; and (2) the direct obligation to the carrier to hold possession of the goods for him according to the terms of the bill as fully as if the carrier had contracted direct with him."

Tbe plaintiffs, under this statute, by payment of tbe draft and tbe delivery to them of the attached bill of lading, were entitled to all tbe property called for in tbe bill of lading, and, in tbe.event of a failure to deliver, to recover full compensation from tbe carrier, as complete as tbe consignor could have recovered bad be remained tbe consignee.

C. S., 377, provides: “Tbe endorsement of a bill shall not make tbe endorser liable for arvy failure on the part of the carrier or previous endorser of tbe bill to fulfill their respective obligations." Our statute, as above, is practically tbe same as tbe Federal Bills of Lading Act of 29 August, 1916, as set out in tbe Federal Supp., 1918, 2d Ed., 72 et seq.

*14Formerly tbe consignor alone could recover for damages sustained by goods in transit or tbe penalty for delay unless tbe consignment was made in tbe name of tbe consignee. Tbe assignee of an “Order, notify” was only entitled to tbe goods in tbe condition tbat tbey were in wben tbe assignment was made. Tbis was an injustice for tbe consignor, after receiving payment of tbe draft attached, bad no inducement to sue for damages to tbe goods, or tbe penalty for tbe delay in transportation and tbe payer of tbé draft wbo suffered tbe loss from sucb damage and delay was without remedy. Tbis was remedied by tbe above statute, which placed tbe assignee of sucb bill of lading, on payment of tbe draft attached, in tbe same status,- with tbe same right to recover sucb damages to tbe goods and for any penalties and subject to tbe same defenses as formerly tbe consignor held in regard to sucb shipments. Tbe judgment of nonsuit should be

Reversed.