
    BOWERS v. WORTH.
    (Filed September 18, 1901.)
    
      CONTRACTS — Delivery—Shipment—Sales.
    Where a person sells a certain number of bags of peanuts and delivers them co a carrier according to contract, and before tbe shipment thereof by the carrier the seller opened the car and placed some additional bags therein — not delaying thereby the shipment — the placing of the additional bags in the car does not affect the right of the seller to pay for the bags delivered according to the contract.
    Montgomery,, J.„, dissenting.
    
      ActioN by J. E. Bowers & Co. against T. B. Worth & Co., heard by Judge T. A. McNeill, at Spring Term, 1901, of the Superior Court of Halifax County. From a judgment for the plaintiff, the defendant appealed.
    
      Claude Kitchen, for the plaintiff.
    
      W. A. Dunn, for the defendant.
   FuRGhes, C. J.

This is an action for breach of contract in the sale of a car-load of peanuts, growing out of the following contract and agreed state of facts; that on 13th of October, 1899, plaintiff and defendant made following contract: “Messrs. Bowers & Co: We are in the market for a car of Spanish, and if you have anything to offer, would he glad to hear from you at the lowest possible price. Of course, offer must be for immediate shipment. Truly yours, J. B. Worth Co. Better wire if you can offer anything.”

To which Bowers & Co. replied by telegram on October 17th: “Can buy car of Spanish at 75 cents. Ship on Saturday.”

To which telegram defendant replied on same day as follows : “Accept car; must be clean, dry goods; shipment not later than Saturday.”

2. That on the Saturday referred to, being October 21st, the plaintiff did deliver at the warehouse of the W. and W. Railroad Co., in Scotland Neck, N. C., (223) two hundred and twenty-three bags of Spanish peanuts, and took B. L. for the same, which were consigned to the defendants. ■

3. That on the 23d day of October the plaintiffs, by permission of the agent of the railroad company, opened the car in which the 223 bags of peanuts had been put, and placed therein thirty-three bags more of Spanish peanuts, and the B. L. was changed to correspond with the number of bags actually in the car.

4. That said change was without the knowledge on consent of the defendant.

5. The peanuts were tendered to the defendant in Peters-burg, Va., and the defendant refused to- accept the same.

6. It is admitted that 223 bags is a car of peanuts, and that 256 bags is a car of peanuts.

7. That a delivery of a car of peanuts at any time on Saturday, the 21st day of October, to the railroad company, and taking .B. L. therefor, would be a shipment within the meaning of said contract, and that they complied with this contract, provided the facts hereinbefore recited do not constitute a breach of said contract.

8. That the plaintiffs are entitled to recover the sum of ninety-eight dollars, with interest thereon from the 21st day of October, 1899, if they have complied with said contract.

9. That the said peanuts left on the first freight train -leaving Scotland Neele after Saturday, October 21st, for defendant at Petersburg.

It will be seen that the contract was to ship the peanuts by the following Saturday, which was the 21st day of October, 1899, the contract being made on the 13th of October.

It is agreed that 223 bags of peanuts is a car-load; and it is agreed that the plaintiff delivered to the railroad agent, at Scotland Neck, for shipment-to the defendant, 223 bags of peanuts on Saturday, '21st October, which was in time, and a compliance with the terms of the contract.

If nothing more had been done, it is,admitted that plaintiff would have been entitled to recover and to the judgment in this case. But it is admitted that on Monday, the 23d of October, and after the 223 bags of peanuts had been placed in the car for shipment, the plaintiff took 33 bags of peanuts to said depot, and, with the consent of the depot agent, put them in the car with those delivered on Saturday, and the bill of lading was then changed so as to include the 33 bags delivered on Monday. It is also agreed that tbis did not delay tbe shipment of the peanuts delivered on Saturday. It was admitted and stated on the argument that plaintiff could not recover for the 33 bags delivered on Monday, and that they were not included in the judgment appealed from. Upon the peanuts reaching Petersburg the defendants refused to receive them.

So the case comes down to this: Did the placing of the 33 bags on Monday in the car with the 223 bags prevent the plaintiff from recovering for the 223 bags delivered on Saturday ?

The delivery of the 223 bags on Saturday was a compliance with the contract, and the peanuts at once became the property of the defendant, and he had the right to sue for and recover them in claim and delivery proceedings. And the plaintiff had no -more right to them than any stranger would have had. The right he might have had, over that of a stranger to the transaction, was the right of stoppage in transitu; and this he only had in case of insolvency, which is not alleged, and this right has nothing to do with the case before us.

Suppose the 223 bags delivered on Saturday had not been put in the car on Monday when plaintiff delivered the 33 additional bags? Those delivered-on Saturday would have been' defendant’s peanuts, just as much as thev were when put in the car; but the 33 bags delivered on Monday would not have been, because defendant had not bought them. The defendant could not have recovered them by action, nor would he have been liable for them until he accepted them. This, we think, is clearly so, and was substantially admitted on the argument.

What difference it makes that the plaintiff, -with the consent of the depot agent, was allowed to put them in the ear with the 223 bags delivered on Saturday, we are not able to see. If it be contended that tbe depot agent at Scotland Neck was tbe agent of tbe defendant, it might be contended that be accepted tbe 33 bags and defendant was liable for them, But if this were so, we do not see bow it would affect the right of tbe plaintiff to pay for tbe 223 bags delivered on Saturday.

While it is true that tbe officers of the railroad company are tbe agents of tbe consignee after tbe goods are delivered, this agency only extends to goods rightfully shipped, and which belonged to tbe consignee when shipped or delivered for shipment. They can not be tbe agent of a party who does not own tbe goods and has no interest in them. So, whatever tbe depot agent may have done, does not affect tbe case.

Tbe judgment should be

Affirmed.

MONTGOMERY, J.,

dissenting. Tbe plaintiff agreed to sell to' tbe defendants a car-load of peanuts, tbe same to be shipped not later than tbe following Saturday from Scotland Neck, N. C., to' Petersburg, Va. On tbe last-mentioned day tbe goods were delivered to the agent of tbe Wilmington and Weldon Railroad Co., at Scotland Neck, tbe car-load •consisting of 223 bags. Tbe bill of lading called for 223 bags and tbe consignees were tbe defendants.

On tbe Monday following, and before tbe first freight train left tbe station for Petersburg, tbe plaintiffs, by permission of and with tbe consent of tbe freight agent, and without tbe defendant’s knowledge or consent, opened tbe car, placed therein 33 bags of peanuts in addition to the quantity delivered on Saturday, and tbe bill of lading was altered so as to conform to tbe addition to tbe car-load of tbe 33 bags.

Amongst tbe other facts admitted, it was agreed that 223 bags of peanuts is a car-load, and also that 256 bags is a car-load.

Upon tbe arrival of tbe peanuts a,t tbeir destination, tbe car-load of 256 bags was tendered to tbe defendants and they refused to receive tbe same. Tbis action was brought by tbe plaintiffs in a court of a Justice of tbe Peace, to recover damages for an alleged breach by tbe defendants of tbe contract of sale and purchase. Tbe defendants admit tbeir liability, if as a matter of law tbe plaintiff’s act in opening tbe car and placing therein tbe additional 33 bags of peanuts, and tbe tender of tbe 256 bags to tbe defendants, was not a breach of tbe contract on tbe part of tbe plaintiffs. It does not appear from tbe agreed and admitted facts whether tbe defendants knew of tbe change made by tbe plaintiffs in tbe original shipment, but as no reason is given why the defendants refused tbe same, Ave must take it that tbe refusal was because of tbe act of tbe plaintiffs in opening tbe car and putting in tbe additional 33 bags, and tbe tender to tbe plaintiffs through tbe railroad company of tbe cardoad of 256 bags, instead of the original shipment of 223 bags.

Tbe contract for the purchase of tbe peanuts was completed Avhen tbe plaintiffs on Saturday placed in tbe car the 223 bags, and tbe right of property therein passed to tbe defendants; but Avhen the plaintiffs, with tbe consent of tbe carrier, took possession of the car on Monday and placed therein tbe 33 additional bags, and tbe bill of lading altered to meet tbe added quantity, and tbe carrier tendered to tbe defendant tbe car-load lot of 256 bags, tbe defendants bad the right to refuse tbe car-load as tendered. Tbe contract, as we have seen, was completed on Saturday when the 223 bags were delivered to tbe carrier, and if tbe defendants bad received tbe car-load of 256 bags with a knowledge of tbe facts, tbey would have been bound to the plaintiffs for tbe price of the whole. And tbis view is in no way inconsistent with tbe legal effect of tbe delivery of tbe 223 bags on Saturday — tbe completion of tbe contract and tbe passing of tbe property to tbe defendants. Tbe plaintiffs and tbe carrier’s agent, by their interference with tbe car on Monday, and tbe tender to deliver tbe 256 bags' in Petersburg, prevented the delivery of the true quantity bought under tbe contract, and the defendants were not compelled to go into a lawsuit with tbe carrier to get possession' of tbe 223 bags, a part of the goods embraced in tbe bill of lading, and which part was not offered to be delivered. And tbe plaintiffs therefore can not recover any damages against tbe defendants for doing what they bad a light to do under tbe circumstances.  