The bill of sale from Busbton & Co. to Bobinson & Ledyard, tbe appellants, bearing date December 16th, 1885, and transferring to them tbe stock of merchandise of tbe vendors, in absolute payment of a pre-existing debt, is tbe same instrument construed by us in tbe case of Robinson & Ledyard v. Fairbanks & Co., 81 Ala. 132, and again in Robinson & Ledyard v. Levi, 81 Ala. 134. Upon a state of facts substantially tbe same as those appearing hr the present record, we tben observed, that there could be no question about tbe fact, that tbe defendants, if tbe evidence was to be believed, “were bona fide purchasers of tbe goods for value, and without notice of any alleged defect in tbe title of Busbton & Co., just as fully as if they bad paid tbe cash for them.” No controversy was- made upon tbe trial- raising any question as to tbe correctness of tbis ruling.
There are many assignments of error in tbe present record. We do not propose to notice any of these, except such as are insisted on in tbe brief of appellant’s counsel, tbe others appearing to be without merit.
Tbe main contention here insisted on, and raised by tbe rulings of tbe Circuit Court, relates to tbe title acquired to tbe goods in controversy by Busbton & Co., the consignees of the plaintiffs. If the sale of tbe tobacco to them was ■ *260completed, by an actual or constructive delivery,' and tbe intention of the vendors was that tbe title should unconditionally pass, then tbe appellants, Eobinson & Ledyard, acquired a good title; otherwise not.
" Tbe contract for tbe sale of tbe goods was made by Simon & Bro., of Montgomery, Alabama, as agents of tbe plaintiffs. Tbe shipment was made by railroad, and a bill of lading was taken in which Eusbton & Co. were named as tbe consignees. This bill of lading was mailed to Simon Bros., with a bill for tbe goods, on which were written tbe words, “Shipped to Eusbton & Oo., Montgomery, Ala.” It was agreed between Eusbton & Oo. and Simon & Bro. that tbe latter were to “retain tbe bill of lading” until tbe goods were paid for; but there is no evidence that tbe goods themselves were to be retained until tbe price was paid. The Evidence, on tbe contrary, tends to prove that tbe sale was made on credit, after closely inquiring into tbe financial status of tbe consignees. Tbe tobacco was delivered by tbe railroad to tbe consignees, without tbe presentation of tbe bill of lading.
Where goods have been sold, and are delivered by tbe vendor to a common carrier, consigned without reservation to tbe vendee, tbe question as to whether tbe title, eo instanti, passes to such consignee, depends upon tbe intention of tbe vendor, .to be gathered from all tbe circumstances of tbe case. There is no doubt as to tbe correctness of tbe general rule, that where tbe bill of lading shows a consignment by tbe vendor to tbe vendee, in ordinary form, and no other circumstance appears as to tbe intention, tbe prima facie legal presumption is that an unconditional delivery to tbe consignee is contemplated. But this presumption of fact may be rebutted by evidence showing a contrary intention. Jones v. Sims, 6 Porter, 138 (1837); Ezell v. English, Ib. 307; Emery v. Irving Nat. Bank, 25 Ohio St. 360; s. c., 18 Amer. Rep. 299; 2 Amer. & Eng. Encyc. Law, 212; People v. Haynes, 11 Wend. 516; s. c., 28 Amer. Dec. 530; Everett v. Coffin, 6 Wend. 603; s. c., 22 Amer. Dec. 551; Ostander v. Brown, 15 John. 39; s. c., 8 Amer. Dec. 218, note; American Ex. Co. v. Greenhalgh, 80 Ill. 38. Tbe title of tbe goods is commonly retained in the consignor by taking tbe bill of lading to bis own order, or in blank, or by drawing on tbe consignees with tbe bill of lading attached to tbe draft, or other like procedure, indicating an intention to retain in himself a jus disponendi over tbe *261goods until tbe price is paid, or until tbe happening of some other contingency. — McCormick v. Joseph, 77 Ala. 236; Ala. Gr. So. R. R. Co. v. Mt. Vernon Co., 84 Ala. 173; Chandler v. Sprague, 38 Amer. Dec. pp. 417-421, note; Bank of Rochester v. Jones, 55 Amer. Dec. 299, note; Dows v. Nat. Exch. Bank, 91 U. S. 618.
The delivery to the common carrier, in cases of the former class, is deemed prima facie a delivery to the consignee, not only when the consignment is made to a carrier named by the consignee, but also when made to some carrier in the usual course of trade, who thus becomes, impliedly, the agent of the consignee to receive and transport the goods at his risk; the sale thus becoming presumptively complete at the point of shipment, although the price is not to be paid until the goods reach their destination. — Garbracht v. Com., 96 Penn. St. 449; s. c., 42 Amer. Rep. 550; Bilgreen v. State, 71 Ala. 368; Sarbecker v. State, 65 Wis. 171; s. c., 56 Amer. Rep. 624; Hausemanv. Nye, 62 Ind. 485; s. c., 30 Amer. Rep. 199. Hence it is commonly held, that the consignee in a bill of lading, where there is no reservation of title by the consignor, has vested in him such a property in the goods as to authorize him to sue the carrier, in his own name, for their injury, loss or recovery, in trover, detinue, or other appropriate action. — Chandler v. Sprague, 38 Amer. Dec.423, note; Rotter v. Lansing, 3 Ib. 310, 318, note ; Angelí on Common Carriers, § 497; Griffith v. Ingleden, 9 Amer. Dec. 444; So. Ex. Co. v. Armistead, 50 Ala. 351; M. & G. R.R. Co.v. Williams, 54 Ala. 168.
Under these principles of law, 'the refusal of the fourth charge requested by the appellants was error. If the facts, hypothesised in this charge, were believed by the jury, the consignees could have recovered the goods from the railroad company. Hence their delivery, without presentation of the bill of lading, did not presumptively prejudice the rights of the consignees. The case presents no question whatever involving the rights of a transferree of the consignor, claiming an interest by purchase in the property as holder of the bill of lading. If the sale was on credit, and the goods were not to be retained until the price was paid, the mere retention of the bill of lading by the agent of the consignor would not prevent the sale from becoming complete.
We can not perceive that the case is affected by Eushton . & Co.’s declaration made to Simon, before delivery of the goods by the railroad, that they did not want the goods; in *262as much, as there was no evidence tending to show the assent of Simon & Bro., or their principals, the consignors, to release the consignees from the purchase, or to rescind the trade. It required the concurring assent of both contracting parties to rescind the trade, just as fully as it did originally to make it. Neither alone could do so. The evidence on this point was irrelevant, and should have been excluded.
The judgment is reversed, and the cause remanded.