dissenting: This action was begun before a justice of tbe peace to recover $34 for tbe loss of ten caddies of tobacco shipped *248on plaintiff’s order from Winston, N. C., 20 October, 1913, by tbe R. J. Reynolds Tobacco Co. to Farmers Furnishing Co. at Raeford, N. C., which-were lost on the line of the defendant’s railroad and never delivered. The Farmers Furnishing Co. (who had not paid the plaintiff for the ten boxes) charged back the value of same ($34) to the plaintiff, by whose order the tobacco had been shipped, and released to the plaintiff all claim against the railroad company for the loss.
On 9 December, 1913, the plaintiff filed in writing with defendants claim for the loss, and the same not having been paid, after the lapse of more than six months, began this action on 29 June, 1914, to recover said sum of $34, with interest from 9 June, 1913, and the penalty of $50 for failure to adjust and pay said claim within the time allowed by law. A jury trial was waived, and the court having found the above facts, rendered judgment for said $34 and interest and for the $50 penalty and costs.
The defendants admitted the loss of the tobacco in transit, that the claim was filed by the plaintiff and failure to pay for ninety days, and in the Superior Court before trial tendered payment of the $34 and interest, but declined to pay the $50 penalty, on the ground that the plaintiff was not entitled to recover the penalty because .it was not assignable.
An action for a penalty is ex contractu, Katzenstein v. R. R., 84 N. C., 688, and citations thereto in Anno. Ed., and is therefore assignable. Petty v. Rousseau, 94 N. C., 355. An action for damages on account of a lost shipment and penalty for unreasonable delay in settlement of the claim can be joined in the same action, for both lie in contract. Robertson v. R. R., 148 N. C., 323; Jeans v. R. R., 164 N. C., 229; Laws 1911, ch. 139.
The plaintiff, however, does not sue as assignee, but as the real consignor and the “party aggrieved,” and therefore entitled to maintain this action for the loss and the penalty (which is an incident merely to the loss) under the general statute which requires an action to be brought “by the party in interest.” Revisal, 400; Petty v. Rousseau, 94 N. C., 355. The plaintiff bought the tobacco from the R. J. Reynolds Co. It was on its order that the shipment was made to the Farmers Furnishing Co., and it was therefore the real consignor, though the R. J. Reynolds Co. appeared in the bill of lading as the nominal consignor. The consignee charged back to the plaintiff the goods which it failed to receive and for which it had not paid, and gave to the plaintiff a statement of that fact. The plaintiff thereupon filed its claim for loss, attaching this statement from the defendant, showing that the plaintiff alone was interested in the loss.
The defendant did not object when the claim for loss was filed, that it *249was filed at Baeford, instead of at "Winston, which was merely a directory matter. If it had made such objection, as in all fairness it should have done, the plaintiff would doubtless have filed the claim for loss at Winston. Not having made the objection, it was waived, else the plaintiff was misled and put to a disadvantage. The defendants ■did not refuse to pay the loss on any such technical ground that the ■claim was filed at the wrong place, but tendered payment, and has not excepted on this ground on this trial and the exception is not before us.
It is a matter of common knowledge that railroad companies were often neglectful in adjusting and settling claims for loss of goods in transit, whereby shippers and consignees were much prejudiced. A mere action to recover the loss entailed upon the party injured the expense of counsel fees and the annoyance of litigation. To remedy this public evil the statute which is now Eevisal, 2634, was enacted (chapter 330, Laws 1905) for the public benefit. It gives a penalty of $50 against any common carrier failing to adjust and make payment for such losses within ninety days. It having been held that a consignor was not “the party aggrieved” who is entitled to recover damages in such ease, Buggy Corp. v. R. R., 152 N. C., 119, the General Assembly thereupon amended the act to provide that the recovery could be made by the consignor “when it shall appear that the consignor was the owner of the shipment.” Laws 1911, ch. 139.
If the claim for the penalty had been assigned the assignment would have been valid. Petty v. Rousseau, supra,; but in fact the statement given to the plaintiff by the consignee was merely to show that the consignee had no interest in the loss and that the plaintiff was “the owner of the shipment,” Laws 1911, eh. 139. This case is therefore stronger than Horton v. R. R., post, 383, because in that case the nominal consignee had not given any such certificate, brought home to the defendant as here, that the plaintiff there was the real consignee.
In this case it appears, on the facts found by the judge, that the E. J. Beynolds Co., the nominal consignor, had no interest whatever in the shipment; that the nominal consignee had none; that the plaintiff was the actual owner of' the shipment and filed its notice with the certificate of the nominal consignee, and that the plaintiff was the real “owner of the shipment.” The defendants do not deny that the plaintiff was such owner and that it had neglected for more than the allotted ninety days to adjust the claim by tendering the $34 and interest in open court. If filing the claim at Baeford was a defect material to the plaintiff’s rights, it was waived by the defendants not giving the plaintiff notice of said objection, and was further waived in open court by tendering the amount of the loss, and is not now presented by any exception.
*250Tbe defendants, by admitting by tbeir tender tbat tbe plaintiff was-tbe “owner of tbe shipment” and bad suffered tbe loss claimed, wbicb tbe defendants bad failed to adjust and pay, tbe penalty of $50 given by tbe statute was an incident (Laws 1911, cb. 139), and tbe judgment of Allen, /., to tbat effect should be affirmed.
The Reynolds Tobacco Co., tbe nominal consignors, could not sue for loss of tbe goods, because they were merely tbe agents of tbe plaintiff' in shipping tbe goods, and therefore only nominal consignors. The-consignee could not .sue because it gave a certificate (or release) tbat the-goods belonged to tbe plaintiff. Tbe only party who could sue was tbe plaintiff, who, tbe defendant admits by tendering payment, was tbe “owner of tbe shipment,” in tbe language of tbe statute. Tbe defendant has not denied tbat tbe plaintiff gave notice in due time, and it has not objected tbat it did not receive such notice because it was filed at the-wrong place. Tbe record shows more than six months elapsed before-tbe plaintiff brought suit to recover bis loss. Tbe defendant, having dragged tbe plaintiff through three courts, now is willing to pay for tbe wrong be has done tbe plaintiff, after tbe lapse of two years, tbe $34, tbe value of tbe goods, wbicb ought to have been paid when the-loss occurred.
Tbe law requiring tbe penalty of $50 was to enforce upon these-great common carriers tbe necessity of paying proper attention in a reasonable time to tbe claims of shippers who sustain losses from tbe negligence of tbe railroad companies and to recoup tbe necessary cost forced on those who have to sue to recover their losses.
To turn tbe plaintiff off now, after paying counsel for representing them in all tbe courts, from the lowest to the highest, and to tax the-plaintiff with tbe costs of this appeal on tbe ground tbat tbe notice was filed at tbe wrong place (to which tbe defendant then made no objection! is to impose upon tbe plaintiff a loss far greater than tbe value of tbe goods. Tbe statute, instead- of being a protection, has proved to be a severe punishment to tbe plaintiff for tbe temerity of asking-tbat tbe courts make tbe defendant pay for tbe goods which the defendant has negligently lost and refused to pay for.
A statute ought to be construed according to its intent. Tbe old maxim tbat a penal statute is to be strictly construed, if it ever bad any justification, applies only in criminal cases. It certainly ought not to apply as to a civil remedy in regulation of tbe railroad companies when, without excuse, they fail to pay losses caused by tbeir negligence in tbe shipment of goods. In such cases tbe true maxim is tbat “A remedial statute should be construed so as to advance tbe remedy and. repress tbe evil.”