#### F. D. CLINE and MRS. F. D. CLINE, Trading as F. D. CLINE, Contractor, v. VIRGINIA AND CAROLINA SOUTHERN RAILROAD COMPANY, a Corporation.

(Filed 19 April, 1944.)

Appeal by plaintiffs from Johnson, Special Judge, at January Term, 1944, of Wake.

Civil action to recover damages for negligent failure to deliver shipment of fuel oil.

The Mexican Petroleum Corporation, of Texas, shipped a carload of fuel oil to plaintiffs, freight prepaid, via Seaboard Air Line Railway as delivering carrier. An intermediate carrier erroneously routed the shipment from Atlanta by the Atlantic Coast Line Railroad and defendant, with waybill and shipping instructions “freight collect.” On arrival at Lumberton plaintiffs were notified but declined to pay the freight shown to be due on the waybill. Some days thereafter he paid the freight and the shipment was promptly delivered.

There was judgment of nonsuit, and plaintiffs appealed.

Thomas W. Ruffin for plaintiffs, appellants.

McLean <& Stacy and Arch T. Allen for defendant, appellee.

Per Curiam.

The shipping instructions received by defendant called for the collection of freight upon delivery. It was unlawful for it to make delivery without complying with these instructions. U. S. C. A., Vol. 49, sec. 3 (2). So soon as the freight was paid prompt delivery was made. No negligence on the part of this defendant is made to appear. Hence, the judgment below must be

• Affirmed.