Skellie, for the use of Cooper & Harper, sued the railroad company for failing to deliver and transport on board the steamer “ Gate City,” which was to sail upon a certain day, three car-loads of watermelons, which he alleged had been delivered to the railroad company in time for that purpose. It appears that the watermelons were received by the company at a station on the line of its railroad; and the bills of lading state that they were “ to be transported over this line to Boston,” and delivered to the consignees at Boston, Messrs. Chamberlain & Co.; no particular route or method by which the melons should be carried being specified in the bills of lading. The watermelons reached Savannah after the departure of the “ Gate City”; and thereupon, the rail*61road company telegraphed to Skellie, informing him of this fact, and requesting him to give instructions to forward the melons to New York, instead of to Boston. Skellie agreed to this, and they were shipped accordingly. He alleges that, by reason of this failure on the part of the railroad company to transport the melons to Boston as agreed, he sustained a considerable loss, the price obtained for them in New York being much less than would have been received if they had been duly delivered in Boston.
1. On the trial of the case, Skellie offered to prove “ that Cooper & Harper consented to make said sale to Skellie (the sale of the watermelons, which were purchased from them by Skellie) only on condition that J. S. Chamberlain & Co. would accept said drafts (being drafts upon the consignees), and that Chamberlain & Co. agreed to accept said drafts only upon condition that said melons would be placed upon the ‘ Gate City5 at Savannah for transportation to them; that these facts were communicated to A. X). Skellie, the agent of the defendant at Eort Yalley, who had .solicited the shipment over the defendant’s road, and that the defendant’s said agent, after communicating with the authorities of the defendant at Savannah, assured plaintiff, T. O. Skellie, that if the melons were put on board the cars by the 13th of July, 1886, when in fact they were put on board said cars, that defendant would put them on board the ‘ Gate City’ in Savannah in plenty time to transport them to Boston; that upon this assurance, in presence of said A. D. Skellie, said trade was closed between T. O. Skellie and Cooper & Harper.” The defendant having objected to this evidence, on the ground that the same would add to or vary the bill of lading, the court sustained the objection, and refused to admit the evidence; to which ruling the plaintiff excepted and assigns the same as error.
*62"We think that some of this testimony was admissible and some not admissible. In offering this testimony, as above set ont, the jDlaintiff attempted to prove too much; he proposed to prove a great deal that had nothing,' to do with the contract between him and the railroad company. That the plaintiff’ bought the melons from Cooper & Harper, on condition that he was to draw upon Chamberlain & Co. and that they should accept his drafts, had nothing in the world to do with the contract between the plaintiff and the railroad company. And inasmuch as all this testimony was offered as a whole, that which was relevant not being separated from that which was irrelevant and inadmissible, we think the court did right to exclude it.
2. There were several propositions on the part of the plaintiff’ to amend his declaration; but the court refused to allow the amendments. Ve see no reason for the amendments; for the declaration was good as it stood. And while he had a right to amend in form or substance as he pleased, and the court had no right to refuse to allow him to amend, it seems to us, by the terms of' his proposition to amend, that he would have amended himself out of court. It would seem that his purpose in amending was, to avoid what he conceived to be the consequences of his own act in having agreed, after the alleged breach of contract, to the change of destination of the melons. He seemed to apprehend that the result of this might be to relieve the company from liability. But in this he was mistaken. If there was a breach of contract by the railroad company, and the melons were afterwards, by his consent, shipped to New York and there sold at a loss, as alleged in this case, the shipment and the sale of the melons in New York was for the benefit of the railroad company, and it was their duty to make good his loss. He could have taken the watermelons in Savannah and sold them for whatever he *63could get, after this breach occurred, if any did occur, and the railroad company would have been liable for his loss. Hnder his declaration, he could have recovered, if he had proved what he proposed to prove by the agent of the railroad company, viz. that if the watermelons, after they were delivered to the agent, had been put on board the defendant’s cars by a certain time, they would have reached Savannah in time to be shipped on the- “ Gate City” to Boston. It was a question for the jury to determine, whether after the watermelons were delivered to the railroad company, they had sufficient time to transport them to Savannah and place them upon the steamer before its departure. If this was true, and if' there was a breach of the contract by the company in failing to deliver the melons on board the steamer in due time, any agreement that the plaintiff may have made afterwards' as to the change of destination or consignment of the melons, was for the benefit of the railroad company; and he would be entitled to the damages occasioned by the breach.
3. The plaintiff also proposed to prove by the defendant’s agent, “ that at the time this bill of lading was delivered by the railroad, at the same time and in the same presence and with the consent of the agent of the railroad at Eort Valley, the draft was drawn upon the bill of lading in favor of Cooper & Harper, and the bill of lading and the draft both turned over in the presence of the railroad agent to Cooper & Harper, and the railroad agent knew Cooper & Harper were the real owners of the bill of lading and the watermelons” ; which testimony, upon objection, was rejected. "We think that this testimony was irrelevant and that it was properly rejected.
4. Hnder the testimony, as it appears from the record in this case, we think the court was right in granting-the nonsuit.
Judgment affirmed.