The plaintiff herein claims damages for breach of contract, arising upon a contract made with the defendant as a common carrier. The alleged breach consisted of the failure to demand and retain the original bill of lading from the consignee, before delivering the goods received for carriage to the consignee. The plaintiff claims that this agreement is to be found in clause 9 of the bill of lading, which reads as follows: “ If the word ‘ Order ’ is written hereon immediately before or after the name of the party to whose order the property is consigned, without any condition or- limitation other than the name of the party to be notified of the arrival of the property, the surrender of this bill of lading, properly indorsed, shall be required before the delivery of the property at destination. If any other than the aforesaid form is used herein, the property may, at the option of the carrier, be delivered without requiring the production or surrender of this bill of lading.”
At the trial, the plaintiff put in evidence the bill of lading, containing the word “ order ” before the name of the consignor (plaintiff), and the word “ ¡Notify ” written partly, over the printed words “ Consigned to;” it also has printed on its face the words “ non negotiable;” plaintiff then rested.
Defendant claims: (1) That no cause of action is alleged by the complaint, because it appears therefrom that the goods were actually delivered to the consignee, and this is the whole duty of the defendant. The plaintiff is, however, not claiming for breach of the carrier’s duty to deliver to the consignee, but upon the express words of the contract which forbids him to deliver, except upon the production of the bill of lading. (2) That plaintiff has not brought himself within *609that clause, because the word “ order ” appears before his name and not before the name of the consignee. It will be observed that this clause does not say that the word “ order ” must be before the consignee’s name. It simply says that it must be before the name of the person to whose order the goods are consigned and contemplates that the consignor may also be the consignee. Moreover, the Providence firm are not in fact the consignees, although so described in the complaint. Furman v. Union Pacific R. R. Co., 106 N. Y. 579, 587: “ Here is no statement that Zueca Brothers are the consignees. The very presence of the word ‘ notify ’ in its relation to them, shows that they are not intended as the consignees.” I believe that under the authority of that case the complaint could have been brought for failure to deliver to the right consignee. (3) That this bill of lading was non-negotiable, and, therefore, no right of third parties could arise. If my views above stated are correct, this is both untrue and immaterial, because the goods belonged to the plaintiff until delivered upon the transfer of the bill of lading; untrue because in fact the bill of lading was negotiable. It is true that the word “ nonnegotiable ” is printed on the face of the bill of lading, but through its written terms it was negotiable. The explanation of this word is that, under our penal statute, the carrier must regard all bills of lading as negotiable unless this word is printed on their face.
The difficulty with this case is, however, that there is no proof of damage. The record consists of no evidence except the bill of lading and a statement of plaintiff’s counsel which may be considered a stipulation, but which contains no word as to damage. Since the plaintiff has totally failed to show any damage, the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.
Geldersleeve and Seabury, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.