The opinion is written upon the theory that the evidence shows an express agreement that title should not pass to the consignees, unless shipment was made at the agreed time. I do not so construe the evidence.
However, this difference of opinion as to the effect of the evidence is immaterial, because in sales of this character time of delivery is presumed to be of the essence of the contract and a condition precedent to the buyer's liability. Norrington v. Wright, 115 U.S. 188, 6 S. Ct. 12, 29 L. Ed. 366; Clement v. Border (Tex.Civ.App.) 237 S.W. 596; 2 Mechem on Sales, 1138, 1139, 1215-1218.
The evidence shows that the parties treated time as of the essence. It may thus be assumed that under the facts shown complete title had not passed from the seller to appellees at the time of the fire.
But I am further of the opinion that at the time of the fire they had such an interest in the goods, which coupled with the subsequent payment of the price to the seller, as authorizes the maintenance of the suit by appellees. 4 R.C.L. 940-944; Railway Co. v. Humphries, 4 Tex. Civ. App. 333,23 S.W. 556; Railway Co. v. Dorsey, 30 Tex. Civ. App. 377, 70 S.W. 575; Ralph v. Ry. Co., 32 Wis. 177, 14 Am.Rep. 725; Robinson v. Railway Co.,105 Tex. 185, 146 S.W. 537; Railway Co. v. Turner, 43 Tex. Civ. App. 608,97 S.W. 509; Davis v. Wylie Jackson (Tex.Com.App.) 256 S.W. 256.
For the reason indicated, I think appellees were the proper parties plaintiff.
As to the appellant's second assignment, it was an issue of fact whether the consignees were notified by the carrier of the arrival of the goods. Under both the state and federal law appellant's liability as a common carrier did not terminate until after such notice has been given to consignee. The question of whether appellant's liability was changed from that of a common carrier to that of a warehouseman is therefore not in the case.
For the reason indicated I am of opinion both assignments should be overruled, and the judgment affirmed.
But, if I am in error in the view that appellees were the proper parties plaintiff upon the theory indicated, then I am of the further opinion that upon the payment in February, 1921, by appellees of the price for *Page 118 the shoes they were thereby subrogated to the rights of the consignors, and upon proper plea and evidence are entitled to recover.
The present judgment, however, cannot be sustained upon that theory, but should be remanded for retrial, and not here rendered.