concurring: No question is raised upon the record as to the rights of a shipper under a parol contract of shipment, as it appears that the plaintiff introduced a bill of lading as evidence of his title to the goods. Nor is the right involved of the carrier to require the production of the bill of lading, when one has been issued, in order that the correct freight charges may be ascertained, because it is alleged in the complaint and admitted in the answer that the freight charges were prepaid. Nor is any Federal question raised, as the defendant has not invoked the protection of the commerce clause of the Constitution. Nor has any exception been taken to any issue submitted to the jury.
It does appear, however, that the defendant excepted to the refusal of his Honor to substitute for the third issue the follow*230ing: “Did tbe plaintiff make a proper demand on the agent of the defendant for the delivery of said syrup ?” and to his charge on the third issue as to the burden of proof, and these exceptions present the questions in controversy.
I agree to the proposition that when a bill of lading is issued, it is evidence of the shipper’s title to the goods, and it is to the interest of the 'carrier and the shipper that it should be presented before the delivery of the goods, because, as it is assignable, it is only in this way that the carrier can be protected against-a delivery to the wrong person, and that the shipper may be sure to get his goods. It is, therefore, I think, under the authorities, the right of the carrier to require the presentation of the bill of lading when the goods .are demanded; but this right may be waived.
I therefore think that, ordinarily, the issue tendered is the proper one, 'but in' this case it -is admitted that the goods were shipped, that the freight was prepaid, and that they were in possession of the defendant marked as the property of the plaintiff, and the issue .submitted to the jury presented the only excuse relied on in the answer for nondelivery, that the agent of the defendant demanded the bill of lading and it' was refused.
The issue follows very closely the language of _ the answer, and under it both parties had ample opportunity to present ■ their contentions.
His Honor charged the jury on the second and third issues as follows: “The second issue, ‘Was said shipment of' goods received by defendant railroad at Wadesboro, as alleged?’ You have heard the evidence on that issue. The only question for you to determine is whether,or not the goods admitted by the defendant to have been in its warehouse at Wadesboro, marked to the plaintiff and sold by it, was the same shipment for which the plaintiff contends. If you are satisfied that it was, then 'you should answer the second issue ‘Yes’; otherwise, answer it ‘No.’ The.third issue is, ‘Did the defendant, the railroad company, demand the production of the bill of lading for said goods by the plaintiff as a condition precedent to delivery, as alleged by the defendant?’ If you find that these goods in the posses*231sion of tbe defendant were tbe same goods wbicb tbe plaintiff purchased, that is, if you answer tbe second issue ‘Yes,’ then the burden is on tbe defendant on this third issue to satisfy you that it demanded of Mr. Jeans that be produce tbe bill of lading, and that it was because of bis failure to produce tbe bill of lading that they failed and refused to deliver tbe shipment of goods,” and tbe defendant excepted to tbe last paragraph.
Tbe charge is based on an admission or a finding of tbe jury that tbe goods were shipped to the plaintiff; that tbe freight charges were prepaid; that they were in possession of tbe defendant, marked to tbe plaintiff, and that delivery bad been refused upon demand; and, so understood, was not, I think, erroneous.
These facts, if proven, would establish prima facie ownership in tbe plaintiff and entitle him to a delivery of tbe goods, and tbe .burden would then be on tbe defendant to justify nondelivery.