"The carrier takes the risk of a delivery to the person entitled to the goods by the bill of lading and its indorseThe consignee named in the bill of lading is presumptively the owner of the goods and must be treated by the carrier as the absolute owner until he has had notice to the contrary; and a delivery to him without such notice will discharge the carrier. Thus, if the consignor would for any reason retain the ownership or control of the goods, he must notify the carrier of such fact; for otherwise the presumption that the consignee named is the rightful owner and entitled to their possession will prevail as against any undisclosed intention which the consignor may have had to the contrary."

At section 181, vol. 1, the same author says:

"But while the carrier takes the risk of making delivery to the person entitled to the goods by the bill of lading and its indorsements, and should, therefore, be careful to require the person demanding the goods, when such person is another than the consignee, to produce the bill of lading properly indorsed, he will fully discharge his duty in making a delivery without requiring the bill of lading to be presented if delivery is made to the person who is lawfully entitled to the goods. The right of the carrier to demand the presentation of the bill of lading is a precaution of which he may avail himself, for the purpose of avoiding delivery to the wrong person, but which, if he sees fit, he may dispense with; and if delivery is made to the person vested with the right to receive the goods, the carrier will have performed his duty. If therefore the consignee should direct the carrier to make delivery to a third person to whom he has transferred title, and delivery is made in accordance with such directions without requiring the bill of lading to be produced, the failure of the carrier to require its production will place him under no responsibility to a bona fide holder who, after such delivery, has taken the bill of lading from the consignee. And although a bill of lading providing for a delivery to the consignor or his order contains an express provision that the carrier shall require its surrender or production before making a delivery of the goods, such requirement, it is said, will be considered as having been inserted for the benefit of the carrier, and, as between himself and the consignor, cannot subject the carrier to liability for failing to require the production of the bill of lading on making

delivery to one to whom the consignor has ordered that the goods shall be delivered."

An examination of the authorities cited by the writer will show that the text is amply supported.

In 4 Elliott on Railroads (2d Ed.), § 1523, it is said:

"The rule in regard to the person to whom delivery must be made is very strict. It must be made to the right person, and it seems that neither the fraud nor imposition of any one else nor mistake on the part of the carrier will excuse it from liability, if it delivers the goods to the wrong person. The right person is, ordinarily, the consignee or his authorized agent. But if the carrier delivers to any one, even to the consignee, without the production of the bill of lading, it runs the risk of having to show a delivery in accordance with the terms thereof, and, where a vendor ships goods and takes a bill of lading in his own name or to his order, the carrier cannot safely deliver the goods to any one else unless the bill is indorsed or transferred by him and produced by the person to whom they are delivered."

Further, in a note to section 1524, the author says:

"That a carrier may be protected in a proper case even if it does not require production of the bill of lading, if it shows it delivered to the right party, see (citing many cases)."

The case of Chicago Packing, etc., Co. v. Railway Co., 103 Ga. 140 (29 S. E. 698, 40 L. R. A. 367), is instructive. The bills of lading in that case contained the same provision that the goods should not be delivered without surrender thereof. They were indorsed and signed by the plaintiff as follows: "Deliver to Hobbs & Tucker, or order, for collection." Tucker ordered delivery to one Ragan in the following terms:

"E. N. CLARK, Agent: Let N. L. Ragan have car meat on dray track, and I will be responsible for B-L. May 18, 1893. A. W. TUCKER."

The carrier made delivery to Ragan relying upon this order without the surrender of the original bill of lading. The shipper thereupon sued the carrier for damages caused by a wrongful delivery. The court said:

"If a natural person consigned goods to his own order under a bill of lading which provided that it should be surrendered before delivery could be made, and called in person upon the carrier's agent at the point of destination, demanded a delivery of the goods, and thereupon received the same, it certainly could not be questioned that, as between him and the carrier, such delivery would be good, and would free the carrier from further liability to him, although the bill of lading may not have been produced and surrendered in accordance with the stipulations therein contained. While in such a case the carrier might not, as against one who had in good faith and in the due course of business obtained the bill of lading properly indorsed, be protected by a delivery to the original consignor, surely the latter would have no cause of complaint against the carrier. If such a consignor could thus obtain a delivery of the goods to himself in person, what difference, in principle, would it make if, instead of doing this, he, by a written order, directed delivery to another, who obtained the goods upon such order without producing and surrendering the bill of lading. In either case, looking at the transaction with reference only to the consignor and the carrier, the latter would have done all that the former had any right to require of it. In other words, the stipulation in such a bill of lading requiring its surrender upon delivery of the goods is for the benefit of the carrier, and not that of the consignor."

See, also, Gates v. Railroad Co., 42 Neb. 379 (60 N. W. 583); Nebraska Meal Mills v. Railway Co., 64 Ark. 169 (41 S. W. 810, 38 L. R. A. 358, 62 Am. St. Rep. 183); 6 Cyc. p. 472, and cases cited in note 49.

Whether the stipulation in the bill of lading that surrender thereof shall be required before delivery is considered to be for the benefit of the carrier or the shipper would seem in this case to make no difference, for the plaintiff was not the shipper. Being the owner of the property at the time of delivery to the carrier, plaintiff chose to represent by the contract negotiated with the carrier that Botsford & Barrett were the shippers thereof, to whose order delivery should be made, at the same time neglecting to disclose to the carrier that it (the plaintiff) desired or intended to retain any control over the ship

ment for its own protection. Defendant had no knowledge or notice of plaintiff's secret intention. For aught defendant knew, Botsford & Barrett might have paid plaintiff before the shipment was made. Indeed, the terms of the bill of lading negotiated by plaintiff plainly indicated that such was the fact. We cannot escape the conclusion that this loss has come to plaintiff (if a loss there be through the financial inability of Botsford & Barrett) by reason of its own carelessness in failing to make the shipments to its own order, or in some other manner notifying the defendant that it desired to retain its title to the shipments until paid for the same. Having made delivery of the shipments to the parties named in the bills of lading upon the order of Botsford & Barrett as directed in the bills, we think the defendant should be held to have performed its full duty in the premises.

Defendant requested the court to make findings of law as follows:

"Under the evidence in this case, when defendant received the beans in controversy and issued its bills of lading therefor, and the same were accepted by plaintiff, the beans became (as between the plaintiff and defendant) the property of Botsford & Barrett, and the plaintiff cannot complain of a delivery of the same by the defendant or its connecting carrier to or on the order of Botsford & Barrett.

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The fact that the original bills of lading were not surrendered to the delivering carrier at the time of the delivery of the beans will not make the defendant liable, for the reason that the beans were delivered on the order of Botsford & Barrett and the evidence does not show any notice to defendant that the title to the beans was not to pass to Botsford & Barrett, or that the same were not to be delivered on their order."

These findings should have been made.

The judgment is reversed, and there will be no new trial.

STEERE, C. J., and MCALVAY, KUHN, OSTRANDER, and STONE, JJ., concurred with BROOKE, J.

MOORE, J. (dissenting). I cannot agree with the conclusion reached by Justice BROOKE. I do not agree with him that the bill of lading is unambiguous and states the ownership of the property described therein. It is true that it says it was received from the owners, but it nowhere states who the owners were at that time, and I think the record justifies the second and fourth findings of fact made by the circuit judge.

I reach the conclusion from this record that the plaintiff was the owner of the beans in question, and sold them to Botsford & Barrett, and consented the beans might be consigned to them, and shipped over the road of the defendant, but insisted that the original order bill of lading must be produced, properly indorsed, before the defendant was authorized to deliver the property.

The defendant contracted to require the surrender of the order bill of lading properly indorsed before it would deliver the beans. This it did not do. Before the consignees could get the original order bill of lading, they would have to either pay the plaintiff or make some arrangement which would be satisfactory to it. By making the contract in question the plaintiff had a right to suppose that defendant would not deliver the property until the conditions named in the contract had been performed. The defendant having violated its contract in this regard, I think it was liable to the plaintiff for the injury done to it by this violation.

It follows from what I have stated that I think the judgment of the court below should be affirmed.

BIRD, J., concurred with MOORE, J.