I concur in the opinion that the question propounded by the Court of Appeals must be answered in the negative. The general trend of authority in the United States is to the effect that where goods are damaged by a common carrier in the course-of transit, or where damages arise by reason of delay in transportation, the consignee has a right to demand delivery of the goods without paying the freight, provided the damages equal or *897exceed the amount of the freight charge. Missouri Pacific Ry. Co. v. Peru-Van Zandt Implement Co., 73 Kan. 295 (9 Am. & Eng. Ann. Cas. 790, 794, and note, 85 Pac. 408, 87 Pac. 80, 6 L. R. A. (N. S.) 1058, 117 Am. St. R. 468). In all, or nearly all, of the cases on this subject, the action involved was one of replevin or trover to recover the goods or damages for conversion. No ease has come to my attention where it has been held that the shipper or consignee could sue, not-to recover the property or damages for its conversion, or for a breach of the contract of carriage, but on an implied contract on the part of the carrier to pay him the value of the goods. However it may be in other jurisdictions in the United States, I icol confident that no such action can be brought in this State, under the Civil Code (1910),’ § 2741, which has been brought forward since the original Code of 1863, and the decision from which it was evidently codified (Brown, Shipley & Co. v. Clayton, 12 Ga. 564). In that case Clayton shipped certain cotton to Brown, Shipley & Co. That firm sold the cotton and sent to him an account of the sales. He was dissatisfied with it, and the suit resulted. One question discussed by the court was whether the consignees were negligent in not abandoning the consignment to the carrier for the freight. It was said that “The better opinion is, that he can not abandon the goods, and thereby discharge the freight.” There was a contention that the consignees were negligent in not withholding the freight charge to an amount equivalent to the damage. In fact the damage was less than the freight. But the decision was not placed upon that ground. In the eleventh headnote it was said: “The owners of the ship and the master arc liable for loss, to the shipper or the consignee, happening to goods shipped as common carriers, except so far as that liability is restricted by the terms of the charter-partjr, or bill of lading, or by statute. They have a lien upon the goods for freight, and may detain them for pajonent; whilst they, at the same time, have recourse personally upon the owner of the goods, unless the lien and the personal liability of the owner are waived or modified, in the contract of shipment.” In the opinion it was said (p: 575) : “But a more serious point was made in the argument, which my duty constrains me to notice. The consignees can not recover, say the counsel; or rather can not be allowed to retain -the amount of repairs done to the cotton; because they were guilty of negligence in not with*898holding freight to ah equivalent sum. The answer to this proposition is that the law allows the carrier his freight when the goods are delivered, irrespective of damage. The consignee had no legal authority to withhold the freight as a satisfaction for damages. If he receives' the goods, the law raises a promise to payr the freight, and 'if he does not do so, both he and his principal are liable for it. If the carrier and the owners are liable for damage, the shipper and his consignee must resort to their action to recover them. In Shields vs. Davis, it was ruled that the consignee accepting goods could not defend himself from the payment of freight upon the ground that they were damaged by the master in the transportation. The master, said Gibbs, Chief Justice, is liable to a cross action. 6 Taunton, 65.” The. volume cited is not accessible to mo. But in 4 Camp. 119, I find what is apparently the same case, sub nomine Shecls v. Davies. Tn the report last cited it appears that the action was one of assumpsit for freight on account of a quantity of butter carried in a ship, and received by the defendant under the hill of lading. The defense proposed to be set up was that the butter had been injured, by bad stowage, to a degree much beyond the amount of the freight. It was stated that “Gibbs, C. J., held that the bad stowage of the goods was the subject of a cross action, and did not affect the right to the freight.” If this is the same case cited from 6 Taunton’s Reports, as authority in the Brown, Shipley <£• Company case, it involved damage in excess of the freight charged,'and this fact shows clearly that this court was not dealing with the case because the amount of the damage was less,than the amount of the freight, but on the ground that, the carrier had a right to retain the goods until the freight was paid, unless he waived such right, and that this could not be destroyed by claiming damages for delay or bad stowage. The decision followed what the court considered'the English rule on that subject. We need not stop to consider whether, under our statute -in regard to recoupment, this rule has been so far modified as that, if the carrier should bring an action to recover the freight charge against the shipper or consignee, the defendant could recoup the amount of damages arising from failure of duty by the carrier. That is a different proposition from the question whether the carrier, upon every claim that unliquidated damages have arisen to the consignee greater in amount than the freight charges fixed by *899contract or law, must waive Ms lien, deliver the goods, and rely upon a suit against the consignee, or else, though he may honestly contest the existence or amount of such damage, become, in effect, a purchaser of the goods, under an implied contract to pay their' value, should a jury ultimately find the question of damages against him. I am aware that in some of the American authorities above mentioned the argument is strongly presented that if the amount of the damages exceeds the amount of the freight, the consignee should be allowed to claim that no freight is due, and that if no freight is due there can be no lien. If this argument be pursued to its logical end, however, and if-a consignee can pay or extinguish freight charges by setting up unliquidated damages equal to them, it would seem that if the damages amount to one half or some other proportion of the freight charges, he ought to be allowed to extinguish such charges to that extent, tender the balance of the freight in'money, and demand the delivery of the goods. If unliquidated damages are good as a payment or discharge in whole, apparently they should be good as a payment or discharge in part, if the balance is tentiered in money. The suggestion is not met by the reply that the lien is entire and not apportionable. If it is discharged in foil in damages plus money, this is as much a discharge as if made by setting up damages alone. But no case has come to my attention which holds that this can he done. In view of the decision hi the case of Brown, Shipley & Go., the fact that our code adopts the common law where not changed or modified, that the language of the code is that the lien exists only when the carrier has complied with the contract “as to transportation,” and of the other authorities cited in the opinion of the Chief Justice, I am of the opinion that the decision in the Brown, Shipley & Go. caso is binding, that what was said on this subject was not obiter dictum, and that the ruling there made has not been changed by the code. A request was made to review the case of Brown, Shipley & Go., supra; but the requisite number of members of this court do not concur in the opinion that it should be reviewed and reversed, and, under the statute, it must stand.