of the wheat. The draft was presented before the arrival of the wheat, and Woodruff refused to pay it; whereupon G. C. Graddy, one of the firm of Graddy & Son, went to Columbus to see him about the matter, and insisted upon a payment on the contract. Woodruff still objected to paying the money until the wheat arrived. Graddy then assured him that the wheat shipped was as good as the sample, and upon the faith of this assurance Woodruff paid ninety cents a bushel upon the wheat which had been shipped, and 335 Graddy delivered to him the bills of lading, which entitled Woodruff to receive the wheat from the railroad upon its arrival.

This, we think, constituted an executed and complete sale of the wheat. By giving up the indorsed bills of lading Graddy & Son parted with their title to and control of the wheat, and it became the absolute property of Woodruff. No other person then had the right to demand the wheat from the railroad company, and undoubtedly it would have been subject, as the property of Woodruff, to a judgment or other lien against him. Whatever may have been the legal effect of the letters and telegrams above referred to, and which led up to the consummation of the sale, we think the final terms thereof were embodied in the agreement made between Graddy and Woodruff at the time the latter paid the money and received, in return, the bills of lading. If Graddy's assurance did not, under the circumstances, amount to an express warranty on the part of his firm that the wheat then en route to Columbus was as good as the sample in question, it certainly did at least raise an implied warranty to this effect; and the sale, as already shown, being executed, it was immaterial, for the purposes of this case, whether the warranty was express or implied. After this transaction, the wheat, in contemplation of law, was in Woodruff's possession, and was his property. What he did really amounted to an acceptance of it without inspection. When it finally arrived, no matter what its condition may have been, it was his wheat, and he had no right to rescind the contract and refuse to use it, nor was he under any obligation to offer to return it, but did have the undoubted right to stand upon the warranty he had received: Code, sec. 2652; Clark v. Neufville, 46 Ga. 261. In the case cited it was also held, that, if there be fraud in the sale, the rule is different, and the vendee may rescind. The element of fraud, as a basis of rescission, is not referred to in the second head-note, in which it is

336

ruled that a buyer cannot rescind without returning or offering to return the goods, but this head-note must, of course, be understood as applicable only in cases where the buyer has a right to rescind. Thus understood, the head-note and opinion fully sustain what is ruled in the case at bar.

Suit was brought by Graddy & Son for the balance due, at the contract price, on the wheat delivered, and for damages alleged to have been sustained by Woodruff's failure to ac cept the balance contracted for. The defense was that the wheat failed to come up to the sample by which it was sold, and was worth fifteen cents per bushel less than it would have been if equal to sample, and Woodruff sought to set off and recoup against plaintiffs' action the damages he had thus sustained. The charge of the court on this subject, the substance of which is stated in the head-note, cut him off from so doing, for it was virtually admitted that he fully knew the condition of the wheat before he unloaded it from the cars and used it. The view of the trial judge was, that if Woodruff, after examining and inspecting the wheat and discovering its condition, received it into his mill and used. it, he should be held to have waived any right to complain of its defective condition, and was bound to pay the full contract price. Whatever may be the law applicable in a case where the sale is executory, and it is not contemplated by the parties that it shall be complete until after inspection and actual and formal acceptance of the goods by the purchaser, we are quite confident that in the present case the sale was executed and fully consummated before the wheat arrived; that Woodruff, by accepting and acting upon the warranty of Graddy & Son, whether express or implied, and relying on the same in parting with his money, had 337 waived his right to inspect the wheat or to reject it, if found defective and not equal to sample; and it must follow as an inevitable conclusion that, being placed in this position, he could protect himself from loss by holding Graddy & Son to the warranty, and making them liable for a breach thereof. This, we think, accords both with sound law and with sound justice, and, as already stated, is supported by the code and decision of this court above cited.

It is quite probable that the court below treated the sale as being executory until inspection and formal acceptance of the goods, and counsel on both sides in the argument here seemed to take this view of it. But a thorough examination

of the evidence has convinced us that, under the undisputed facts, the sale was really complete before the wheat ever arrived in Columbus, and we have therefore ruled upon the case accordingly.

We have not, of course, intended to express or to intimate any opinion as to what was the actual condition of the wheat on its arrival, or whether it was or was not equal to sample. The plaintiff below earnestly insisted that it was, and introduced testimony in support of this contention. The evidence offered by the defense was to the contrary. Whatever may have been the real truth upon this question, and even though the jury might have believed from the evidence that the wheat was in fact much inferior to the sample, the verdict rendered in favor of the plaintiff was inevitable under the charge of the court complained of, for it was not contended by Woodruff that he was not fully informed as to the condition of the wheat before he unloaded it from the cars and used it in his mill.

The case should be tried over again upon the line indicated, the jury being left to decide the questions of fact involved, under proper instructions from the court.

Judgment reversed.

SALES-DELIVERY BY INDORsement and DeLIVERY OF BILL OF LADING.The consignment of goods by bill of lading vests the property in the consignee when made in pursuance of a prior contract with the vendee, and not otherwise: Bonner v. Marsh, 10 Smedes & M. 376; 48 Am. Dec. 754. Compare Farmers' Phosphate Co. v. Gill, 69 Md. 573; 9 Am. St. Rep. 443. A mere indorsement of a bill of lading, without delivery thereof, does not transfer the property in the goods: Buffington v. Curtis, 15 Mass. 527; 8 Am. Dec. 115. See, especially, the extended note to McNeal v. Braun, 26 Am. St. Rep. 452.

SALES-WAIVER OF WARRANTY OF QUALITY BY ACCEPTANCE.-Goods are not accepted so as to waive the purchaser's right to object that they are not of the quality called for by the contract merely by the receipt and retention of them, if he objects to them and stipulates that such receipt shall not be regarded as an acceptance: Blackwood v. Cutting Packing Co., 76 Cal. 212; 9 Am. St. Rep. 199. This question will be found fully treated in the extended note to Mack v. Snell, 37 Am. St. Rep. 539, and the notes to Smith v. Hale, 35 Am. St. Rep. 490, and Tacoma Coal Co. v. Bradley, 26 Am. St. Rep. 896.

CENTRAL RAILROAD COMPANY V. HASSELKUS.

[91 GEORGIA, 382.]

COMMON CARRIERS-CONNECTING LINES-LIMITATIONS ON LIABILITY.-It a common carrier gives the shipper a bill of lading stating that the goods received are to be transported by itself and connecting carriers to a certain point beyond the terminus of its line, and there delivered to a particular person, and the shipper at the same time pays, or agrees to pay, such carrier the freight charges for the whole route, this constitutes a contract for through shipment, and makes the contracting carrier liable therefor. Additional stipulations in the bill of lading by which the carrier seeks to confine its liability to its own line, not expressly assented to by the shipper, do not change the nature of the contract, and are inoperative as limitations on the carrier's liability. Mere acceptance of the bill of lading does not establish the consent of the shipper to such stipulations; nor is a different contract shown by proof that the carrier was not interested in the rate of freight contracted for beyond its own terminus, and received only its regular local rate from the connecting carrier. COMMON CARRIERS-LIMITATION OF LIABILITY.-Stipulations in a bill of lading which limit or exempt a carrier from liability for loss or damage to goods, unless notice thereof is given within a certain time, are not effectual without proof of express assent thereto by the shipper. COMMON CARRIERS — NEGLIGENCE - BURDEN OF PROOF. - Although goods are perishable, or liable to deteriorate, rapidly from internal causes, yet if they are damaged in the hands of a common carrier the burden of proof is on it to show that it was free from negligence, or that, notwithstanding its negligence, the damage occurred without its fault. COMMON CARRIERS - ACCEPTANCE OF BILL OF LADING PRESUMPTION. If a shipper accepts a bill of lading without objection before the good▲ are shipped, and permits the carrier to act upon it by proceeding with the shipment, it is presumed that he has accepted it as containing the contract, and that he has assented to its terms, except in so far as it undertakes to limit the general liability of the carrier.

COMMON CARRIERS-BILLS OF LADING-PAROL EVIDENCE TO VARY LEGAL IMPORT OF.-Bills of lading silent as to the time of the delivery of freight raise a presumption that delivery is to be made in a reasonable time, and parol evidence is not admissible to vary their legal import by showing that a definite and specified time for delivery was agreed upon by parol either expressly or by implication. COMMON CARRIERS-CONTRACT OF CARRIAGE EVIDENCE AS TO TIME OF DELIVERY.-In an action against a common carrier to recover damages for delay in the delivery of freight under a bill of lading silent as to time of delivery, the declaration alleging a contract to deliver in a definite and specified time, but none to deliver in a reasonable time, evidence as to what would be a reasonable time for delivery is not admissible, and no recovery can be had for failure to deliver in a reason. able time. If the necessary averment as to reasonable time is supplied by amendment to the declaration, evidence on that subject is then admissible.

Hall & Hammond, for the plaintiff in error.

Stewart & Daniel, for the defendant in error.

383 SIMMONS, J. 1. The action was for damages to fruit from delay in transportation. The plaintiffs recovered, and the defendant moved for a new trial, which was refused, and it excepted. The shipments were made from Griffin, Georgia, on the defendant's line of railroad, under bills of lading issued by the defendant, which were headed: "Central Railroad and Banking Company, and connections. Through Bill of Lading," and which stated that the fruit was received in apparent good order and condition, consigned to certain named parties in New York and Philadelphia, to be transported by the defendant and connecting carriers, via Atlanta, to the station or wharf nearest to its ultimate destination. The defendant at the same time took from the shippers a guaranty of the freight charges for the entire route. It was contended that the defendant was not liable, because there was no delay or damage on its own line, which ended at Atlanta, and because as to any delay or damage beyond its line it was released by the contracts of shipment, the bills of lading stipulating that "the liability of each carrier as to goods destined beyond its own route shall be terminated by proper delivery of them to the next succeeding carrier," and "in case of loss, detriment, or damage, or delay in the transportation thereof, imposing any liability hereunder, the carrier in whose actual custody they were at the time of such loss, damage, detriment, or delay shall alone be responsible therefor." The bills of lading were signed only by the agent of the defendant, and it does not appear that these stipulations were expressly assented to on the part of the shippers.

The code (sec. 2068) declares that " a common carrier cannot limit his legal liability by any notice given, either by publication or by entry on receipts given or tickets sold. He may make an express contract, and 384 will then be governed thereby." According to the decisions of this court in Central R. R. Co. v. Dwight Mfg. Co., 75 Ga. 609, and Falvey v. Georgia R. R. Co., 76 Ga. 597, 2 Am. St. Rep. 58, when a common carrier gives the shipper a bill of lading which states that the goods received are to be transported by itself and connecting carriers to a certain point beyond the terminus of its line, and there delivered to a particular person, and the shipper at the same time pays such carrier, or agrees with it to pay, the freight charges for the whole route, this constitutes a contract for through shipment, for the performance of which, beyond as well as to the terminus of its own