dissenting in part: This action is brought to recover $18.75, tbe value of a shipment of syrup made to tbe plaintiff over tbe defendant’s railway, and for $50 penalty under section 2634 for delay in settling tbe claim, and also for an additional penalty of $50 under Revisal, see. 2633, for refusal of defendant’s agent to deliver tbe goods upon plaintiff’s demand.
I am of opinion that tbe plaintiff is. not entitled to recover tbe additional penalty last named.
Tbe plaintiff’s evidence tends to prove that in March, 1912, Penick & Foard shipped to him by tbe defendant’s railway six crates of syrup. Tbe plaintiff received tbe bill of lading for tbe syrup for tbe shipment, wbicb be introduced in evidence. Tbe plaintiff testifies that be does not remember when be received tbe bill of lading, but tbe evidence shows be never presented it' to tbe defendant’s agent.
Tbe goods were received by the defendant at-Vadesboro, and when tbe plaintiff called for them, they were in tbe defendant’s warehouse. Tbe plaintiff did not have a bill of lading for tbe goods then, and did not present it.
*232Plaintiff offered to pay any freight charges, but defendant’s agent stated be bad no waybill for tbe goods, and could not tell wbat tbe charges were. There is no evidence that tbe plaintiff ever -presented a bill of lading to defendant’s agent for tbe goods, accompanied by a demand for tbe same.
There is evidence that the defendant’s agent demanded tbe bill of lading before delivering tbe goods. The goods were sold ' by the defendant some time afterwards for tbe freight money.
I agree with tbe majority of the Court that the plaintiff is entitled to recover tbe value of tbe goods and tbe $50 penalty for failure to settle tbe claim within the- statutory period. But I do not think tbe plaintiff is entitled to recover tbe additional penalty for failure to deliver tbe goods, under Revisal, sec. 2633. That section reads as follows:
“Paid at classified rates; penalty for overcharge. All common carriers doing business in this State shall settle their freight charges according to the rate stipulated in tbe bill of lading, provided tbe rate therein stipulated be in conformity with tbe classification and rates made and filed with tbe Interstate Commerce Commission in case of shipments from without tbe State, and with those of the Corporation. Commission 'of the State in case of shipments wholly within this State, by which classifications and rates all consignees shall in all cases be entitled to settle freight charges with such carriers; and it shall be the duty of such common carriers to inform any consignee or consignees of the correct amount due for freight ac-. cording to such classification and rates, and upon payment or tender of tbe amount due on any shipment which has arrived at * its destination according to such classification and rates such common carrier shall deliver tbe freight in question to consignee or consignees, and any failure or refusal to comply with the provisions hereof shall subject such carrier, so failing or refusing, to a penalty of $50 for each such failure or refusal, to be recovered by any consignee or consignees aggrieved by any suit in any court of competent jurisdiction.”
• To my mind, tbe statute does not warrant tbe recovery of the penalty upon the facts of this case in any view of them. The *233statute does not purport to cover all cases of refusal to deliver freight. If it is so construed, á great hardship would be worked on the carrier, because its good faith in refusing to deliver freight upon any other ground than failure to pay freight charges would be no defense.
The statute makes no exception, because in its entirety it constitutes an exception. Generally, the carrier is liable in damages for refusal to deliver freight unless such refusal can be justified, but in the specific case of refusal of delivery because the consignee refuses to pay more than the amount due for freight according to the published classification and rates, the law imposes a penalty of $50.
By its very terms the section applies only when the carrier refuses to deliver the goods and settle the freight “according to the bill of lading.” And manifestly it is intended to cover only those cases in which the refusal to deliver is because of a dispute about freight rates, and then the bill of lading must control.
This statute has been construed in Harrill v. R. R., 144 N. C., 533. In that case the consignees offered to pay freight charges according to the bill of lading produced by them. The agent refused to deliver because he had received no waybill accompanying the shipment.
Referring to'this section, the Court says: “It does not provide that the penalty for a refusal to deliver freight shall be recoverable only where rates have been made and filed with the Interstate Commerce Commission . . . but the meaning of the section is that upon a tender of the stipulated charges, as stated in the bill of lading, which shall not exceed the amount fixed in the classification and table of rates published and filed with the Commission, and upon refusal to deliver the freight, the penalty shall accrue.”
The opinion goes on to declare that in the absence of such classification the settlement of freight must be made according to fhe terms of the bill of lading, and says:
“The legislation embodied in section 2633 was'intended to recognize and enforce the observance of the rates as fixed under *234the requirement of the Federal law where it is applicable. The provision was made for the protection of the consignee, so that the carrier cannot exact from him, as a condition of the delivery of freight, the payment of excessive freight charges.”
Mr. Justice Walker, speaking for the Court, further says: “If the defendant did not know what the charges were as fixed by the bill of lading, because it did not have the waybill, it should have known, and it was not the fault of the plaintiffs that the waybill did not accompany the goods, and was not received with them, or in the usual course of business.”
In the case at bar there was neither waybill nor bill of lading, and nothing indicating what the proper charges were. The bill of lading is always given to the shipper, and he mails it in the course of business to the consignee.
In this case it had not been received, and has never been presented to the defendant, accompanied with a demand for the goods. The agent of defendant was not required to deliver the goods without prepayment of the freight charges, and he could-not lawfully fix those in the absence of the bill of lading.
The Harrill case, supra, is an example of the proper application of the statute. There the consignees produced the bill of lading, offered to pay freight charges, and demanded the delivery of the goods. The agent refused for the reason that he did not know what the freight charges were, having received no waybill.
Section 2633 expressly provides that refusal to deliver sub-jécts the carrier to the penalty when the freight charges are tendered. But the statute does not say that when delivery is refused upon any other ground that the penalty will be imposed. The hardship of such a view can be illustrated:
If the carrier delivers freight to one-who does not present the Bill of lading, it does so at its peril. . If it is the wrong person, the carrier is liable in damages. If the carrier refuses to deliver-freight when' the proper charges are tendered, a penalty of $50 is .imposed. If the proper charges are tendered by one who does .not present the bill of lading, the carrier must either deliver at its peril or incur the penalty.
*235The defendant excepted to eacb issue submitted, and tendered other issues. The third issue submitted is as follows: “Did the defendant demand the production of the bill of lading for said goods as a condition precedent to delivering?”
This issue was erroneously submitted under a wrong conception of the legal relations of the parties. Our statute, Eevisal, see. 1111, in unmistakable language, puts the burden upon the consignee to produce and present his bill of lading before the carrier is required to deliver the goods. It reads as follows:
“Duplicate freight receipts; charges stated; freight delivered on payment of charges. All railroad companies shall on demand issue duplicate freight receipts to shippers, in which shall be stated the class or classes of freight shipped, the freight charges over the road giving the receipt, and, so far as practicable, shall state the freight charges over the roads that carry such freight.
“When the consignee presents the railroad receipt to the agent of the railroad that delivers such freight, such agent shall deliver the articles shipped, upon payment of the rate charged for the class of freight mentioned in the receipt.”
The bill of lading is-the evidence of the title to the goods, and an indorsement of it by the shipper, if made out to his order, or by the consignee, if made out to him, confers a good title upon the indorsee.
Therefore, the statute fixe.s clearly the condition upon which the carrier is required to deliver freight. It provides that delivery must be made ivhen the consignee presents the railroad receipt, which is the bill of lading, to the agent. It is essential that the consignee show that he has complied with the requirements of this statute before he can complain of the carrier’s failure to deliver freight.
We have a very exhaustive discussion of the question of the duty of the carriers to deliver only to one who has the bill of lading, by Mr. Justice Walker in his dissenting opinion in Clegg v. R. R. 135 N. C., 149. The position taken by the dissenting justices, Wallcer and Connor, on this point, was not controverted by the Court in the opinion. The case went off *236on tbe point that the defendant waived the right to require presentation of the bill of lading. I quote from the dissenting opinion:
“Passing to the question as to the legal duty of a carrier with respect to the delivery of goods, we find it to be well settled that an obligation to deliver to the party having title under' the bill of lading is imposed by law on the carrier, and is absolute and imperative, and a delivery to any other person is a conversion. R. R. v. Barkhouse, 100 Ala., 543.
“The duty of a common carrier is not only to carry safely, but to make a true delivery to the person to whom the goods are consigned (Houston v. Adams (Tex.), 30 Am. Rep., 119), and a delivery to any other is made at the peril of the carrier, unless that person surrenders the bill of lading either made qr indorsed to himself. Gates v. R. R., 42 Neb., 379; Weyand v. R. R.; 75 Iowa, 573; 1 L. R. A., 650; 9 Am. St. Rep.; M. T. D. Co. v. Merriman, 111 Ind., 5; Bank v. R. R., 160 Ill., 401.
“One reason for this rule is that the bill of lading is the symbol of ownership of the property, and though not negotiable, in the ordinary sense, is assignable. Gates v. R. R., supra.
“The carrier can require the production for an inspection of the bill of lading at any time before delivery. Porter on Bills of Lading, sec. 379. The same right belongs to his agent for his own security and protection, and he may exact production of the bill before he gives up the property. Until the carrier can deliver to the shipper, or some one showing authority from him (the bill of lading duly indorsed and delivered being evidence of that authority), it is his duty to retain the goods, and if they are delivered to one not legally entitled* the carrier will be liable to the true owner for their value.
“He has no right under any circumstances to deliver them to a stranger. The Thames, 14 Wall., 98. The carrier is bound not to deliver to any one who has not the bill or symbol" of ownership. Portner B. of L., sec. 414.
“The pledgee of the bill of lading is not- divested of his right or title by any delivery to the consignee, though that delivery *237was obtained upon presentation by tbe latter of a duplicate bill or invoice, wbicb tbe carrier treats as sufficient authority in him to receive tbe goods. Section 530.
“ ‘The carrier takes tbe risk of a delivery to tbe person entitled to tbe goods by tbe bill of lading and its indorsement. Too great caution cannot, therefore, be exercised in respect to tbe right of tbe person to whom tbe delivery is made. No obligation of tbe carrier is more rigorously enforced than that wbicb requires delivery to tbe proper person, and tbe law will allow, in fact, of no excuse for a wrong delivery except tbe fault of tbe shipper, himself.’ Hutchison on Carriers (2d Ed.), secs. 130, 340, and 344, et seq.”
To same effect is Bank v. R. R., 153 N. C., 346. Assuming that the agent could have done so, it is not claimed in this case that be did waive tbe production of tbe bill of lading, because if be bad waived it, be would have delivered tbe goods ; and, therefore, no issue as to waiver was tendered or submitted.
It is only claimed by tbe plaintiff that tbe burden was on tbe agent to demand tbe production of tbe bill of lading. In this instance, if tbe agent bad demanded it, tbe plaintiff could not have produced it, for be did not have it then, and did not get it until long afterwards. There is no evidence that tbe plaintiff ever at any time presented a bill of lading to tbe defendant and at same time demanded tbe goods.
But I think.I have shown by tbe terms of our statute, section 1111, as well as by tbe authorities, that it was tbe consignee’s duty to present tbe bill of lading as a condition precedent to demanding tbe goods. It was as much bis duty to do so as it is tbe duty of a payee in a draft to present it before be can demand tbe money it calls for.
For these reasons, I am of opinion that section 2633 of tbe Eevisal was intended to apply only in those cases in wbicb tbe , refusal to deliver tbe goods is due to a dispute about tbe amount of tbe freight charges, where tbe carrier demands more than tbe consignee is required to pay upon tbe face of tbe bill of lading. Certainly, this is tbe construction placed upon tbe statute by this Court in tbe Harrill case.
*238In our case no freight charges were 'tendered, and none demanded, for the consignee did not have the bill of lading, and the agent had no waybill, and neither knew then what they were or whether they were prepaid.
The plaintiff in his testimony admits that he did not receive the bill of lading mailed to him from Charlotte on 30 December, 1912, until after the goods were sold.
I admit that this Court h,as held in several cases cited in the opinion that section 2633 of the Revisal is not obnoxious as an interference with interstate commerce. But those decisions were made before the recent decisions by the Supreme Court of the United States reversing the majority ,o*f this Court in R. R. v. Reid, 222 U. S., 424; R. R. v. Reid & Beam, 222 U. S., 444; R. R. v. Lumber Co., 225 U. S., 99.
Under those decisions it would seem to be very clear that section 2633 is void as a regulation of interstate commerce.
Mr. Justice Walker concurs in this opinion.