To support this action against the defendant, a common carrier of goods, the plaintiff must have established (1) the delivery of the goods to the carrier; (2) the undertaking on its part to transport them to the named consignee; and (3) the breach of its contract by the defendant through its failure to deliver the goods to the consignee. The finding fails to show the fact of the delivery of the goods to the defendant; all that it shows is the delivery to the defendant of a box purporting to contain shirts. "The law is well settled that until the goods to be carried are delivered for immediate transportation, the receiver does not hold them in the capacity of common carrier. His liability in that capacity commences upon the complete delivery of the goods for immediate transportation." Turner Co. v. New York,N. H. H.R. Co., 86 Conn. 71, 78, 84 A. 298. "If no goods are actually received, there can be no valid contract to carry or to deliver." Pollard v. Vinton,105 U.S. 7, 8; St. Louis, I.M. S. Ry. Co. v. Knight,122 U.S. 79, 7 Sup. Ct. 1132.
The plaintiff relies upon the bill of lading as prima facie evidence of the receipt of the goods. Unexplained or uncontradicted, that proof would be sufficient to establish delivery, if the bill of lading delivered by the defendant to the plaintiff recited an absolute delivery without qualification as to quantity, condition or contents of box. "It is nowhere questioned that a bill of lading is prima facie evidence of the receipt *Page 132 of the goods by the carrier. . . . But such recitals are not conclusive, and it may be shown by parol evidence that none of the goods, or only a part of the goods, described in the bill of lading were in fact received." 10 Corpus Juris, p. 199; Pittsburg, C., C. St. L. Ry. Co. v. American Tobacco Co., 126 Ky. 582,104 S.W. 377.
But this bill of lading does qualify the receipt of the box by its recital, "The property described below [1 box shirts] in apparent good order, except as noted (contents and condition of contents of packages unknown)." This constituted an express limitation upon the contract of carriage to the goods actually received.St. Louis, I. M. S. Ry. Co. v. Knight, supra; Miller v. Hannibal St. J. R. Co., 90 N.Y. 430; 1 Hutchinson on Carriers (3d Ed.) § 165. The specification of the "1 box shirts," imported no more than that the box purported to contain shirts, but that its actual contents were to the defendant unknown. Miller v. Hannibal St. J. R. Co., 90 N.Y. 430, 432. The qualification of this bill of lading was a reasonable and fair regulation, since ordinarily it would be difficult for both shipper and carrier to have the carrier examine the contents of the box. It was still necessary for the plaintiff shipper to show that he in fact delivered the goods to the defendant for which he sues.
The point was conclusively determined in Mears v. New York, N. H. H.R. Co., 75 Conn. 171, 175,52 A. 610, where the plaintiffs sued to recover damages for injury to a piano shipped by the defendant carrier. In its opinion the court said: "The plaintiffs' request for a charge that the shipping receipt raised a presumption that the piano was delivered at Waltham in good condition, was properly refused. Being boxed, the description of the goods received `as in apparent good order, except as noted (contents and condition *Page 133 of contents of package unknown)', could only have referred to the condition of the exterior of the box. There was error in the refusal to instruct the jury that the `clear' receipt, given by the express company at New Haven, was not conclusive, and that the plaintiffs could nevertheless show by other evidence that the piano was then wet and damaged. Such a receipt by a consignee is a mere piece of evidence, and does not necessarily preclude him from afterwards proving what was really the fact."
Chief Justice Shaw expressed the opinion of the court in Shepherd v. Naylor, 71 Mass. (5 Gray) 591, 592, in this manner: "In general, the interior condition of the goods, packed as usual, and necessarily so, for shipping, cannot be known to the shipmaster receiving them for carriage, and therefore the words `in good order and condition' must be limited to their apparently good order and external condition."
The appearance of the box when the defendant delivered it to the plaintiff and he in turn delivered it back to the defendant, and when it was received by the railroad in Philadelphia, indicated that it was "securely and tightly closed." From this fact and the character of the package, the court would have been justified in concluding that the box when delivered to the defendant by the plaintiff was in the same condition as when delivered by Sweet, Orr and Company to the railroad in Philadelphia. It was therefore necessary for the plaintiff, since he had no means of proving the contents of the box at the time of delivery to the defendant, to show its contents at the time of delivery to the railroad at Philadelphia. No facts are found by the trial court as to the contents of this box at the time of the delivery of the box to the defendant, or its delivery to the railroad at Philadelphia, and no facts are found from which an inference might be drawn as to *Page 134 the contents of this box. Failing to prove the contents of the box when delivered to the defendant, or to the railroad at Philadelphia, the plaintiff might have relied upon proof of the contents of the box when it left the possession of Sweet, Orr and Company, and supplemented this by proof that the condition of the box remained the same when it was delivered to the railroad at Philadelphia, and of the fact that thereafter its condition did not change. In either of these ways the plaintiff could have met its burden of proving the delivery of the goods to the defendant, for whose loss he sues. Michellod v. Oregon-Washington R. N. Co., 86 Or. 329, 340, 168 P. 620, 623; CunardSteamship Co. v. Kelley, 53 C.C.A. 310, 115 F. 678; Louisville N. R. Co. v. Echols, 97 Ala. 556,12 So. 304; 4 Elliott on Railroads (3d Ed.) § 2125.
The finding of the trial court does not support the court's conclusion that there had been adequate proof of the contents of the box when delivered to the defendant, and hence the judgment is erroneous.
There is error and a new trial is ordered.
In this opinion the other judges concurred.