dissenting. I think the lower court erred in withdrawing the case from the jury and directing the verdict, and (though I have endeavored to do so) I can not persuade myself to concur in the judgment of my colleagues. It must be admitted that the question of Sell’s liability to the plaintiff depends entirely upon whether the title to the cotton in question passed from the seller to the buyer prior to the burning. The trial judge could not say that Moss & Co. were entitled, ás a matter of law, to have a judgment against Sell for the difference between the amount they paid on Sell’s draft and the value of the cotton actually received after the fire, unless there is absolutely no theory upon which any other conclusion can be reached, and unless no other deduction can be drawn, nor other inference from the facts reasonably supported. Since the lower court directed the verdict, a judgment of affirmance in this case does not mean merely that the judgment of the lower court was authorized; but it is a solemn adjudication that no other result is legally possible. Unless this be true, the numerous rulings of this court upon the' exclusive right of the jury in every case to declare the facts (beginning with Davis v. Kirkland, 1 Ga. App. 5, 58 S. E. 209) are impotent 'and meaningless. It is agreed that the case is controlled by a correct determination of the nature and effect of the bill of lading, and that a proper decision must depend upon the- application of the ruling in Erwin v. Harris, 87 Ga. 333 (13 S. E. 513). If, under that decision, Sell, in delivering this cotton to the railroad company, had taken a bill of lading to his own order, or had taken *858'it otherwise than to Moss & Co., delivery to the carrier would not have been delivery to Moss & Co., and the title would not have passed to Moss & Co., until they became owners - of the bill of lading. On the other hand, if Sell, in delivering the cotton to the carrier, took a bill of lading consigning the shipment to Moss & Co. without any reservation, neither the retention of the bill of lading nor a third person’s possession of that paper would defeat Moss & Co.’s right to the possession of the shipment, or their title under such possession. See Central R. Co. v. Willingham, 8 Ga. App. 818 (70 S. E. 199).
From an examination of the record in this ease, it is perfectly clear to me that Sell did not take (and the railroad did not issue) an “order notify” bill of lading, and thereby retain title in himself to the cotton; and, therefore, having delivered the cotton to the railroad under a bill of lading which bound them to deliver it to Moss & Co., the intention of the parties is at least issuable, even if every circumstance as to what subsequently transpired is taken into consideration. It appears, from the record, that the bill of lading in the present case is a standard bill of lading and not one of the forms used in “order notify” shipments, and that the shipment was consigned to Moss & Co. The usual and well-known custom in preparing bills of lading for “order notify” shipments is for the goods to be consigned to the shipper himself, or to some third person, with a notation to notify 'the real or would-be purchaser. When this ease was previously before this court the decision was predicated entirely uj>on the idea that the transaction turned upon what is ordinarily known as an “order notify” bill of lading with a draft attached, and the first headnote shows that this was the only point upon which the judgment was reversed. The statements in the opinion (page 590, near the top), that “Sell took the bill of lading issued to his order, attached it to the draft,” etc., and (near the bottom of the same page)' that “Sell, in taking the bill of lading to himself,” etc., and (at the top of page 591), that “it is well settled that when the seller of personal ¡oroperty takes from the carrier a bill of lading therefor to his own order, and attaches it,” etc., “this is a declaration on the part of the seller that he does not part with the title,” all show that the court was dealing with the case upon the assumption that it had before it an “order notify” shipment. This impression was created by the *859fact that upon the argument of the case it seemed to be agreed hy counsel that the bill of lading in effect conformed to the requirements of an “order notify” bill of lading. In looking into the record now it is plain that such is not the case, and the only circumstance .which could give rise to such construction is the fact that Sell (unnecessarily, so far as appears) endorsed the bill of lading, by writing his name across the back of it. This act seems to have been entirely unnecessary, because the shipment of cotton was consigned to “B. L. Moss & Co.,” and they would have been entitled to the possession of the cotton upon its arrival at destination, regardless of whether the draft — which Sell procured to be cashed at the Hoschton Bank — had been paid or not. It certainly did not effect a retention of title in Sell, or, in my opinion, necessarily evidence an intention to that effect upon Sell’s part. It does not appear what Sell’s reasons were for endorsing the bill of lading, but as the shipment was plainly consigned to “B. L. Moss & Co.,” and no person was named to be notified, a jury would have had just as much right to infer that Sell placed his name on the back of the bill of lading as a guarantee or pledge of good faith, to aid him in getting his draft immediately cashed by the Hoschton Bank, as that it was intended as an attempt to retain title, which must have been fruitless, as the shipment was consigned to Moss & Co. without any limitation or qualification. And if it be asked what was the object of Sell’s attaching the bill of lading to his draft if it was not to retain title, it seems to me that the pertinent reply is that the very terms of the bill of lading would authorize a. jury to infer that this was done not to retain title, but as evidence to Moss & Go. that he had complied with a condition precedent to the payment of the draft, — viz., the delivery of the cotton to the carrier.
According to the testimony, Moss agreed to buy Sell’s cotton, and to pay him so much for it, and impliedly ordered him to ship it. This was equivalent to saying, “deliver the cotton to the railroad company (which the law construes in such eases to be my agent), and when you do, I will honor your draft for you.” It is settled that the retention of a bill of lading by the seller, or his sending it to an agent to collect the price, does not prevent title from passing to the buyer upon delivery to the carrier. Stanton v. Eager, 33 Mass. (16 Pick.) 467.
*860In my view of the evidence, there is 'also conflict (even if it be admitted that Sell is indebted to Moss & Co. in some amount) as to the amount of the indebtedness; and for this reason, also, the direction of a verdict was error.
So far as the prior decision in this case is concerned, this court is bound by any proposition of law involved and decided in the former case, but the rule stare decisis is not affected by the correction of mistakes of fact. There has happened in tins case just what occurred in this court in Story v. Butt, 3 Ga. App. 119 (58 S. E. 388). When the case was before the court the first time, it was argued and decided upon the assumption that Jesse C. Story had given a “negotiable promissory note” for the rent, and on that theory the judgment of the court below was reversed. When the case came back to the court again (5 Ga. App. 540, 63 S. E. 658), attention was called to the fact that the recital in the former record and former opinion in the case, that the note given by Jesse C. Story to his mother was “negotiable,” was a mistake, and that in fact it was not negotiable. In consequence of the discovery of this mistake, the judgment was reversed again (as it should have been), because the question as to whether the note was negotiable or not negotiable was such an important factor in the case as to absolutely determine it one way or the other. So, in this case, the question as to whether Sell took the bill of lading to his own order, or merely delivered the cotton to the carrier and took a bill of lading naming Moss & Co. as consignees, is the absolutely controlling point; for, unless Sell took the bill of lading to his own order, delivery to the carrier was delivery to Moss & Co.
So far as the opinion of the majority refers to the provisions of § 4126 of the Civil Code, this view of the case is, in my opinion, unimportant, and a decision can not be affected by it, because the proviso of the code section expressly declares that “in cases where the whole or any part of the property has been delivered to the buyer, the right of the seller to collect the purchase-money shall not be affected by its subsequent loss or destruction.” Consequently, if Sell’s delivery to the carrier was delivery to Moss & Co., he would be entitled to retain the entire amount of the draft which represented the purchase-price of the cotton.
In my opinion the trial judge erred in directing the verdict.