delivered the opinion of the Court.
The appellee being a commission merchant in Baltimore, between the month of August, 1881, and the month of January, 1882, received consignments of flour from Oliver Merion, of Minneapolis, Minnesota, for sale upon commission. Upon the 21st of January, 1882, Merion shipped to Corner & Co., without order, a car-load of' “ Champion ” flour, being one hundred and twenty-five barrels, by Milwaukee and St. Paul Railroad and Baltimore and Ohio Railroad via Chicago. On the same day he wrote Corner & Co. advising of this shipment, and naming a price at which Corner, his factor, should sell the same. No hill of lading was sent to Corner & Co.; hut at the time of the shipment a shipping receipt was taken from the railroad for the flour, and that with a draft on Corner & Co. for five hundred dollars was placed in hank for transmission to Baltimore, hut was subsequently withdrawn, and was never sent. Subsequent to the shipment to Corner & Co., Merion received an order for flour from Conrad Ruhl & Son of Baltimore, and decided to change the shipment and to send to Ruhl & Son this car of flour on their order. Accordingly, on the 24th of January, 1882, the *183railroad having been notified, its agent at Minneapolis telegraphed the Chicago agent to hold the car of flour, as Merion wished to change the consignment to Ruhl & Sou. On the 30th of January, the original receipt was surrendered to the railroad agent at Minneapolis, and a bill of lading for the flour was taken out to Ruhl & Son. The agent on the 24th had taken steps to have the address of Corner & Co. removed from the car, and to have that of Ruhl & Son substituted. He telegraphed to Chicago directing this 'change to he made, hut it was neglected, and the flour came through to Baltimore labeled for Corner & Co., and was delivered to them; the Baltimore .agents of the railroad not being advised of the change of destination, and Corner & Co. as yet, having received no information of Merion’s change of purpose, and the actual consignment, by bill of lading, to Ruhl & Son. The proof shows, that on the 24th of January, three days after the shipment spoken of, but before Corner knew of it, he wrote to Merion advising against further shipments unless Merion chose to ship a car of “ Clematis ” flour, without draft, as the margins on the flour still on hand were exhausted. On the 26th of January, Corner acknowledged the receipt of the letter telling him of the shipment of “ Champion,” promising it should he sold for the best prices, and saying, “ we note you have not made draft on this car, as if in anticipation of our request of the 24th to send us a car without draft to cover the margins on shipments now on hand.”
Corner says in the testimony he sold the flour on the 9th of February, although on the 27th of February he wrote Merion he had received no offers, and does not apprise him of a sale until the 4th of March.
The bill of lading, though issued on the 30th of January, was dated back to the 21st of January to correspond with the actual shipment. This hill of lading in favor of Ruhl & Son, with draft on them for $615, was presented by Merion to the Security Bank of Minnesota, and the *184draft was cashed by the hank, which sent both bill of lading and draft to the Bank of Commerce in Baltimore, at which hank Ruhl & Son paid the draft and received in consideration of such payment, viz., the bilL of "lading for the flour. Ascertaining the flour had been received by Corner, appellants in the latter part of Eebruary, or early in March, demanded payment for the same; and the Baltimore and Ohio Railroad also in March demanded the flour.
Upon this state of facts the question arises, who was entitled to this flour — the appellants, or the appellee ? It is conceded that no bill of lading or invoice was ever sent to or received by Corner; whereas it is equally well established and not denied, that Ruhl & Son did receive a hill of lading, and did pay a draft on them for $615 on it.
The appellants insist, that although the flour was originally shipped to Corner & Co., it was so shipped without their order, and that afterwards, and while it was in the power of the shipper to do so, the consignment was changed, and the flour was sold to Ruhl & Sons, to whom a bill of lading and draft were sent, and who paid therefor. They claim that title never passed from Merion to Corner & Co., hut that it did pass to Ruhl & Son. The appellants further and strongly relied on the Act of 1816, chap. 262, in respect to bills of lading, and the effect of the possession of such bills of lading upon title. But the decision of this case does not involve any consideration by the Court of the effect of the Act of lS^, of what construction shall be given it; for there are .well settled principles established and acted upon in very many cases, which will control the decision of this case irrespective of any Act of Assembly.
It is the well-settled law, that the delivery of goods to a common carrier for one who has purchased and who has ordered them, is a delivery to the purchaser, though it does not amount to an acceptance of them. 1 Benjamin *185on Sales, pp. 182 and 195. But it is equally well settled, that where goods have been shipped to one who has not ordered them, title does not pass to the consignee by delivery to the carrier, and the right to change the consignment and destination during the transportation remains in the shipper; and this is so far the manifest reason that there is a want of the essential element of mutual assent to constitute a contract of sale. So that in all cases where goods are shipped upon the account of, and at the risk of, the shipper, this right remains in him. The Francis, Boyer, Master, 8 Cranch, 418 ; Mitchel vs. Ede, et al., 11 Adolphus & Ellis, 888 ; Scothern vs. The South Staffordshire Railway Co., 8 Exch., 340; 3 Condensed Rep. U. S., 245, and notes; Elliott vs. Bradly, et al., 23 Vermont, 217; Hodges & Co. vs. Kimball Farnsworth, 49 Iowa, 577; Hutchinson on Carriers, secs. 134 and 337 ; Blanchard, et al. vs. Page, et al., 8 Gray, 285; and Walter vs. Ross, 2 Wash. Cir. Ct. Rep. 286. In this last case of Walter vs. Ross, the subject was fully considered, and Judge Washington says, “the factor has no interest or property in the goods beyond his commissions, and, of course, cannot controvert the right of his principal. If, indeed, he he a creditor of the shipper, he has a contingent interest in virtue of his right of lien which the possession would give ; hut for the perfection of his right he must acquire and retain an actual possession of this property — constructive possession will not do.”
The same principles are declared in Grosvenor & Starr vs. Phillips, 2 Hill, (N. Y.,) 147, and in Bank of Rochester vs. Jones, 4 Comstock, 500. In Bonner, et al. vs. Marsh, et al., 10 Sm. & Mar., 376; Chaffer vs. Miss. R. R., 59 Miss., 185; Woodruff vs. Nashville and Chattanooga R. R. Co., 2 Head, 87, and several other Tennessee cases, the law is laid down more stringently, as against the factor, than the weight of authority justifies. There can he no doubt, upon the weight of authority, that if the factor have claims *186for advances against his principal, and it he expressly agr'eed, that goods shall he shipped to the factor to pay those advances, then, in such cases, the law makes the delivery to the carrier a delivery to the consignee, though a. factor; and the appellee’s counsel endeavor to bring the appellee within the operation of this rule as laid down in Bailey and others vs. Hudson River Railroad, 49 N. Y., 70, and Strauss vs. Wessel, 30 Ohio State Rep., 211. But. those cases are not analogous to the present one. In Bailey’s Case it was decided that title had passed. The Court said that the ' plaintiffs in that case “ occupied the legal position of vendees after having paid the purchase-money and received delivery of the goods.” It is true, the Court says, in addition, that it is not necessary to hold in that case that the plaintiffs occupied the position of vendees strictly; but still the decision is wholly based on the ground that “the actual agreement and transaction proved by two members of the firm, and uncontradicted,, prevailed.” It was because of the agreement expressly-proved that title was held to have passed to the consignee on delivery to the carrier, and in that way the shipper’s, right to change consignment and destination was lost.. The Court say in that case, the goods were not sold outright to the consignee at specified price, but they were by agreement sent to him for sale, and that the proceeds, should be applied to the payment of the debt; creating thereby the quasi relation of trustee, to whom, for the purposes of the trust, the title passed. In Strauss vs. Wessel, 30 Ohio State, 211, the advances had been made-on the particular lot of pork to-be shipped, which, by express contract, was shipped to pay the indebtedness; and it was held, that under these circumstances, the delivery to the carrier was a delivery to the consignee, who, the Court say, in such case, is in the position of purchaser, having paid for the goods.
If the present case by the proof, measured up in its facts to these last considered cases we should think the *187delivery complete so as to pass title, unless the Act of 1876 interposes an insuperable harrier to such a view,, which the necessities of this case do not require us to consider. According to the facts of the case, which are undisputed, we think it very clear that there was no intention in the original shipment to pass the title out of the shipper, which, Judge Church says, in Bailey’s Case,. already considered, is the true test to he applied. There-was certainly no contract that the flour should he shipped to pay the margins or advances on account of the goods, still in Corner’s hands and unsold. The flour was shipped without order from Corner & Co. The letter advising Corner of the shipment and naming the price at which he was to sell, hears evidence of its being an unsuggested shipment, and that Corner had been writing despondingly of flour prospects. Not a word was said in the letter about-designing that shipment to pay former advances; and we are warranted in supposing he did not know that the margins on the flour still in his factor’s hands were exhausted ; for it does not appear that Corner & Co. ever informed him, until he did so by the letter of the 24th of January, at which time the flour was on its way to Baltimore, and could not be received until some days after-wards. In fact, the proof shows that Merion thought a, considerable balance was due him from Corner & Co. on the previous shipments. As already stated, when the flour was shipped to Corner & Co., a draft for $500 was drawn and put in hank for transmission to Baltimore for presentation to Corner & Co., hut it also appears it was subsequently withdrawn and was never sent, because Merion had received an order from C. Ruhl & Son for flour, and determined to change the consignment, and send this flour to Ruhl & Son instead of to Corner & Co. The Chicago railroad agent was telegraphed by the Minneapolis agent to hold the flour for this change to he made before Corner & Co. sent their letter of the 24th of January, sug*188gesting there was an exhaustion of margins, and if any flour should he shipped, that it be shipped without draft. It is clear, therefore, there was no mutual assent between Merion and Corner & Co. to the flour being sent by Merion to Corner & Co. to pay for previous advances on for-' mer orders. Without such assent, of course there was no contract. Unfortunately, the carding of the car, by the neglect of the railroad or of Merion, was not changed, and the flour came through to Baltimore, and was delivered to Corner & Co., and this complication has produced all the trouble. If the flour was Merion’s when Corner received it, of course Corner’s liens for previous advances would at once attach, and Merion would have to pay them to release the flour; but if, on the other hand, Merion had, while the flour was in transitu and at his risk, parted with the title, and the flour was no longer his, the liens of Corner & Co. would not and could not attach. We have seen that when the flour was shipped it was sent to Corner without order, and the carrier was Merion’s agent and not Corner’s; and that nothing afterwards occurred to change the relation of the carrier and make it the agent of Corner & Co. is clear; for the sale to Ruhl & Son was made before Corner & Co. had ever made their proposition of the 24th of January. Suppose, intead of the flour being received by Corner & Co., it had been received by Ruhl & Son, could Corner & Co. have maintained replevin or trover for the flour ? It certainly could not be contended, upon the proof that they could. If not,, then Corner & Co. had no title, and Ruhl & Son had acquired title and the right to sue Corner & Co. If Corner & Co. have been misled to their injury, they must look elsewhere for redress. What the law or equity would do,- if the controversy was between Merion and Corner & Co., must not be ■considered to divert the mind from the rights of Ruhl & Son.
The Court below erred in granting the, defendant’s prayer. It is entirely at variance with the law of the *189case, as we have declared it. The first prayer of the plaintiff was correct in principle, hut it omitted some of the facts necessary for the jury to find. It ought to have submitted to the jury to find the fact, that the original shipment to the defendant was without his order, and was sent without hill of lading and actual draft on Corner & Co., and that before Corner & Co. received the flour from the carrier, the sale was made to Ruhl & Son. When these elements are incorporated in the prayer, it will be right. The second prayer was correctly refused, for it submits a question which, under our view, the jury had nothing to do with, inasmuch as the factor’s authority was revoked by the sale to Ruhl & Son. It was unnecessary. The third prayer was correctly refused, for it claims as the measure of damages that which belongs to the action of trover, and not to the form of action adopted by the plaintiffs. In the action of assumpsit, in the absence of proof of actual sale of the goods to the defendant, the plaintiff can only recover for the money had and received from the sale of the flour to the use of the plaintiff. The prayer was therefore inconsistent with the form of action.
The question raised by the first bill of exception needs no discussion. The proof tendered was wholly immaterial, and without bearing upon the issue. The previous admission of irrelevant testimony, without objection, did not render its rebuttal competent. There was, therefore, no error in its rejection.
The objection which has been raised by the appellee’s counsel, that the first and second bills of exception are not sufficiently connected, by apt language, to entitle the Court to look at the evidence in the first bill of exception, for the purpose of determining upon the correctness of the Court’s rulings upon the instructions, cannot be maintained. All the evidence was in, and the prayers were not intended to be mere abstractions. They were offered with reference to the proof, as their form shows. The most appropriate *190language is not used for connecting the two hills of exception, hut we regard it as entirely sufficient. The case is similar to and covered by Baltimore and Ohio Railroad Company vs. State, use of Fryer, 30 Md., 47. The language used is, “ all the testimony being in, the plaintiffs •offered the following prayers.” Reference to the testimony recited is manifestly made. It is equivalent to saying “there being no other testimony,” or “this being all the testimony.” The intention is too plain to he disregarded.
(Decided 12th February, 1885.)Judgment reversed, and new trial awarded.