There was evidence before the jury entitling the defendant to the charge asked, if the charge is law. Our decision is based upon 'the assumption that the proof was that the goods were delivered in New York to the Adams Express to be carried to Columbus.
In my concurring opinion in the case of The Southern Express Company vs. Shea, 38 Georgia, 519, I gave my views of just the state of facts proven in this case, to-wit: that the true owner may adopt the act of the carrier to whom he delivers the goods, treat his’act of delivery as authorized, and sue the second carrier on his implied undertaking as a common carrier : See the cases there cited; see also the case of New Jersey Steam Navigation Company vs. Merchants’ Bank, 6 Howard, 344. My brother Trippe agrees with this view of the case, and. the Chief Justice draws this distinction between the Shea case and the present: In the, Shea case the proof was clear that there was an express written contract to ship the *145goods to Columbus by the Adams Express Company, proven by the plaintiff himself; in this case, nothing is proven but the delivery to the Adams — it may have been with authority to deliver to the Southern — it may not; and as the goods are found in possession of the Southern, who, by its letter to the plaintiff, acknowledges its undertaking to carry, the plaintiff has, at least, until the contrary is proven, a right to sue.
The judgment is therefore affirmed.