
    5095.
    Ware, for use, etc. v. Chason.
    Decided November 25, 1913.
    Complaint; from city court of Bainbridge — Judge Spooner. June 25, 1913.
    Ware, for the use of Bailey, sued J. D. Chason on an open account for $175. The account was dated October 11, 1911, and was for 100 bushels of cottonseed, “22 sacks shipped to Arlington, Ga., and 22 sacks to Bainbridge.” The defendant answered, denying indebtedness, and setting up that there was no -written order or contract for the goods, that they had not been accepted and that they were not shipped in accordance with any agreement. On the trial the plaintiif testified: “I sold the 100 bushels of cottonseed in question, which Dr. Chason bought and agreed to pay $1.75 per bushel. . - I am the grower of Ware’s Special cottonseed, and sold the Doctor 100 bushels at $1.75 per bushel, to be shipped half to Arlington, Georgia, and half of said shipment to Bainbridge, Georgia. In pursuance of this trade I immediately shipped to Dr. J. D. Chason, ‘order notify,’ with sight draft attached, to Arlington, 50 bushels of said seed, and 50 bushels of said seed, order notify, with sight draft attached, to Bainbridge, Georgia, and on the same day drew a draft on said J. D. Chason for $175 to coyer said seed, and attached the bills of lading to said sight draft, and mailed it to a bank in Bainbridge for collection. Dr. Chason refused to accept the seed, claiming that he did not buy anything sight draft attached, as he had a commercial rating. Dr. Chason did not tell me how to ship said seed, except half to Arlington and half to Bainbridge. He said nothing about whether I should draw a draft on him or not; so I pursued my usual custom and drew a draft with bill of lading attached. Immediately upon his turning the draft down I mailed him the bill of lading, which he returned to me, still refusing to accept the seed and writing me the letter of date of October 26, 1911. The seed were sold some time this year by the G., F. & A. Bailway Company.- Those seed were in first-class condition. I did all that I agreed to do and all that I could do. Dr. Chason never did tell me to ship the seed open; and as soon as I found out that he had refused to pay the draft, I mailed the bills of lading to him at Bainbridge, Georgia, his home. The "0. N.’ on the bills of lading means "order notify/ The bills of lading were attached to the sight draft, and Dr. Chason could not have obtained the seed until he paid the draft. The title to the seed remained in me until Dr. Chason paid the draft. Dr. Chason failed to pay the draft. He made and signed the entry on the back of the draft, stating that he would not accept the seed. T read the entry made on the draft by Dr. Chason when it was returned to me. After reading the entry I detached the draft from the bills of lading and mailed the bills of lading to Dr. Chason. At the time I mailed them to Dr. Chason I knew that Chason had written that he would not accept the seed.” The plaintiff intro-' duced in evidence the bills of lading and the draft referred to, dated October 11, 1911, and a letter to him from J. D. Chason, dated October 26, 1911, saying: “I herewith return your bill of lading, and say to you again that you have sent me no bill and that your seed is subject to jmur order. You must remember that the seed is now probably ruined, lying in damp depot, salt and everything else, and I will not accept them or pay for them, as you did not ship as I instructed you to do and send bill to me, and to this precious hour you have sent no bill. I won’t accept them at all now, as I feel they are ruined.” With this evidence the plaintiff closed, and the court awarded a nonsuit; to which the plaintiff excepted.
   Russell, C. J.

1, Under the ruling in Erwin v. Harris, 87 Ga. 333 (2), delivery of a shipment to a carrier, with a bill of lading to the order of the shipper, attached to a draft, does not constitute delivery to the consignee, but the carrier is an agent of the shipper, and title does not pass to the would-be purchaser. See, also, Moss v. Sell, 8 Ga. App. 588 (70 S. E. 18).

2. One who purchases personal property presumably upon his personal credit and financial standing, and not as a cash transaction, is not bound to accept the property when shipped with a draft attached to the bill of lading.

3. Under the pleadings and the testimony adduced in behalf of the plaintiff, the court,did not err in awarding a nonsuit. Judgment affirmed.

Bush & Stapleton, for plaintiff, cited: Civil Code, §§ 3222-3; Castlen v. Marshburn, 8 Ga. App. 400.

T. S. Hawes, Erle M. Donalson, for defendant, cited: Civil Code, §§ 4125-6; Moss v. Sell, 8 Ga. App. 588; Erwin v. Harris, 87 Ga. 333 (2).  