#### ACME MANUFACTURING COMPANY v. TUCKER & NOBLES and DIRECTOR GENERAL OF RAILROADS.

(Filed 12 April, 1922.)

1. Carriers of Goods — Railroads—Failure to Deliver — Burden of Proof— Nondelivery Station.

Where a shipment of goods is delivered to a railroad company for transportation, the title vests in the consignee, with the duty resting upon the carrier on the arrival of the goods at destination to notify the consignee and make delivery or show legal excuse for its default. C. S., 3516. And this principle applies to a side-station when notification of arrival should have been given from a nearby station, and the inquiring consignee was there misinformed as to the arrival, and the car in the meanwhile was broken into and the shipment stolen.

2. Same — Verdict—Judgments.

Where it is established by the jury that a consignment of goods was carried to the delivering point by the carrier, its failure to deliver to the consignee, or to notify him, and the goods are lost while in its possession, the verdict is incomplete when there was no issue submitted as to whether the carrier, who is a party to the action, was in default in not delivering it to the consignee, and a judgment thereon against the consignee is reversible error, entitling the consignee to a new trial.

3. Judgments — Statutes—Carriers of Goods — Railroads—Actions—Consignor and Consignee — Director General — Parties.

AVhere the consignor brings action against the consignee for the purchase price of a shipment by common carrier, while the railroad was under control of the Federal Director, and the defense is that it had not *304been delivered, it was proper to make the Director General a party to the action; and in case the shipment had been lost through the carrier’s default, a judgment against the carrier is the proper one. C. S., 602.

Stacy, J.,- dissenting.

Appeal by plaintiff from Kerr, J., at March Term, 1921, of New HANOVER.

This action was brought to recover the value of a carload of fertilizer shipped by plaintiff from Acme, N. 0., on the Atlantic Coast Line Railroad to defendants Tucker & Nobles, at Munford Siding — a blind siding — or nonagency station of the Atlantic Coast Line Railroad, two miles north of Greenville, N. 0., and operated under the control of the Atlantic Coast Line Railroad agency at Greenville.

There is uncontradicted evidence that this carload of fertilizer came to Greenville and was forwarded thence to Munford Siding, but that it was never received by Tucker & Nobles, some one having opened the car and removed the contents, and that there has been a trial therefor before the Federal Court at Wilson. On motion of the defendants, Tucker & Nobles, the Atlantic Coast Line Railroad Company and the Director General of Railroads were made party defendants, and the railroad company answered, placing responsibility, if any, upon the Director General, who through the same counsel as the railroad company admitted the receipt of Soo Line Car No. 36,986, in which this carload of fertilizer was transported, but denied any liability for failure to deliver the same.

The plaintiff admitted that by inadvertence they notified Tucker & Nobles that the fertilizer had been shipped in “Soo Line Car No. 30,986,” whereas in truth it was shipped in “Soo Line Oar No. 36,986.” There was much evidence on the trial in regard to this inadvertence and mistake in the notice sent by the plaintiff to Tucker & Nobles.

The jury responded to the issues submitted that the plaintiff shipped over the Atlantic Coast Line Railroad the 30 tons of fertilizer in Soo Car No. 36,986, consigned to Tucker & Nobles at Munford Siding, but that the defendants Tucker & Nobles never received said fertilizer, and that the value of the same was $1,707. The evidence was uncontradicted that the consignees, Tucker & Nobles, inquired of the railroad agent at Greenville frequently if a carload of fertilizer had been shipped to them at that point, and the agent replied that it had not been received there, and there was evidence that the carload was later placed at Munford Siding, but that no notice was given to the consignee by the carrier or its agent at Greenville, and the agent himself so testified, although it was the habit of the carrier to give such at that siding; that the car *305was broken open by parties unknown, and tbe contents were never delivered to Tucker & Nobles.

Judgment was entered against tbe plaintiff, wbo appealed.

J. G. McCormick and J. Bayard Clark for plaintiffs.

F. G. J ames & Sons and Wright & Stevens for defendants.

Rountree & Carr for Atlantic Coast Line Railroad Company and Director General.

Clark, C. J.

It being admitted by all parties to tbis action tbat, according to tbe way-bill, tbe bill of lading, and tbe wheel report, as well as a matter of fact, tbe carload of fertilizer in question was loaded into and transported over tbe Atlantic Coast Line Railroad in Soo Oar No. 36,986, tbe title at once passed, wben it was so loaded, to tbe defendants Tucker & Nobles, tbe consignees, and tbe burden tben devolved upon tbe carrier represented by tbe Director General to show a delivery thereof to Tucker & Nobles, or tbat failure to deliver tbe same was not by default of tbe carrier. Tbe verdict of tbe jury determined tbat tbe said carload, which bad been transported in Soo Car No. 36,986, consigned to Tucker & Nobles at Munford Siding, was delivered by tbe railroad at said siding, but tbat said carload was never delivered to Tucker & Nobles, and tbat tbe value thereof was $1,701.

Tbe other finding, as to tbe plaintiff having erroneously notified Tucker & Nobles tbat tbe shipment bad been made in Soo Car No. 30,986, seems to have been much debated at tbe trial, and tbe issue as to tbat matter established tbe fact of tbis inadvertency, but we cannot see tbat it was very relevant or at all material.

In Mitchell v. R. R., ante, 162, it was held by Hoke, J., tbat under Revisal, 2632, as amended by chapter 461, Laws 1907, which, as amended, is now C. S., 3516, it is incumbent upon tbe common carrier of freight not only to ship tbe goods promptly, but it is negligence on tbe part of tbe carrier not to make delivery at destination within tbe time limited by tbe statute, which is not complied with “until tbe goods are in tbe company’s warehouse (or at destination) and notice duly given.” Tbe railroad agent at Greenville testified tbat no notice of tbe arrival of tbe shipment was given to Tucker & Nobles, and tbe testimony tbat they frequently inquired for it is uncontradicted.

Tbe carrier having received tbis shipment, consigned to Tucker & Nobles at Munford Siding, tbe title thereupon to tbe goods passed .to tbe consignees, and tbe duty devolved upon tbe carrier to notify tbe consignees upon tbe arrival of tbe shipment and to make delivery. Poythress v. R. R., 148 N. C., 390; Bank v. R. R., 153 N. C., 351.

*306It was eminently proper, and indeed essential, to the disposition of the questions involved that the Director .General should -be made a party defendant.

The trial was incomplete, because the issues submitted did not decide the material matters necessary for a final judgment to determine the ultimate rights of the parties on each side as between themselves. Issues 1 and 3 were as to whether the plaintiff notified the consignees correctly as to the number of car, and number 4, whether the plaintiff corrected this error. In response to issue number 2, the jury found that the plaintiff shipped over the Atlantic Coast Line Railroad this 30 tons of fertilizer, consigned to Tucker & Nobles at Munford Siding, and that it was delivered by the railroad at said siding. In response to issue 5, the jury found that the defendants Tucker & Nobles did not receive the car of fertilizer shipped by the plaintiff to them; and in response to issue number 6 the jury found that the value of the said carload of fertilizer was $1,707.

The matters found on 2, 5, and 6 issues were not controverted by any evidence, and, in fact, were admitted by all parties. The real issue was as to whether the failure of the carrier to deliver was without default on its part. The case should go back for this additional finding of fact, and if found against the Director General, judgment should be entered in favor of the plaintiff and against the Director General. It would be superfluous to render judgment in favor of the plaintiff against the consignees with judgment over against the Director General.

In the language of the statute, C. S., 602, the judgment should “determine the ultimate rights of the parties on each side as between themselves”; and as held in Corp. Com. v. R. R., 137 N. C., 1: “Judgment should be entered on the material issues without regard to the immaterial issues.”

The evidence in this case upon the record shows no default on the part of the consignees, and no excuse for the failure of the carrier to notify the consignees and to deliver the shipment to them, but they should have opportunity now to produce such evidence, and the verdict should distinctly adjust the responsibility for the failure to deliver the goods.

New trial.

Stacy, J., dissents.