Plaintiff, doing business in Kansas City, Missouri, in February, 1895, sold a car load of dressed beef to Calvin Carroll, of Thomasville, Georgia, and *628delivered the. same for transportation to an initial carrier, taking a bill of lading for a through conveyance of the goods and for their delivery upon the order of plaintiff, with directions on the bill to notify Calvin Carroll. The sale in question was made by one Weller, who was the general representative of plaintiff, with headquarters at Atlanta, G-eorgia. When the goods reached Thomasville, G-eorgia, Carroll, who had been permitted to inspect them in the ear, wrote Weller that they had arrived in bad condition. Weller answered by two telegrams sent on the same day, to wit:
1. “To Calvin Carroll. Letter received. Use your stuff. Will see you in a day or so.” •
2. “To Calvin Carroll. G-et railroad inspection your car, receipt for same in damaged condition. Will see you Wednesday.”
Upon the production of these two telegrams the defendant railway company delivered the meat to the consignee without requiring him to produce the bill of lading issued on its behalf by the first carrier. A draft for the price of the goods with bill of lading attached was not honored by Carroll. After the receipt of the shipment by him he had an interview with Weller and some talk between the two of a settlement of the matter. Nothing was done. Carroll failed in business. Plaintiff brought suit against defendant for a conversion of its goods. On the trial the circuit judge excluded the above telegrams from the evidence; gave a peremptory instruction to find for plaintiff; subsequently set aside the verdict thus rendered for an assumed error in the instruction, from which order plaintiff appealed.
*629ACTrorsMENTOi *628The question for review is, did the court err in granting a new trial. To decide which it is only necessary to determine whether the two telegrams sent by plaintiff’s duly accredited agent constituted sufficient *629authority for the last carrier to deliver the goods without requiring the bill of lading. For although a common carrier who surrenders the goods before receiving their symbolical representative does so at its peril, still in a contest between the shipper and the carrier the latter is fully protected if it can show the former’s assent to the delivery. This follows from the rule that no one shall be-heard to complain of the doing of an act to which he consented, or as expressed by the maxim volenti non fit injuria. Broom’s Legal Maxims, side page 268. This idea has been lucidly illustrated in a recent opinion of the supreme court of Georgia, delivered by Lampkin, P. J., Chicago Packing & Provision Co. v. Savannah Railway, 29 S. E. Rep. 698. Of course, if the contest were between the carrier and a transferee in good faith of the bill of lading, the carrier could not excuse delivery before receipt of the bill of lading by any authority from the shipper or any other person-except the holder of the bill or some one authorized to speak for him. Bank v. Railway, 132 Mo. 492. In the case at bar no such intervening rights have accrued. There is no evidence showing that the bill of lading was ever transferred, — in fact, it is practically admitted to be in the hands of the plaintiff because of its dishonor by the purchaser of the goods on account of their bad condition. The defendant carrier delivered the goods to such purchaser upon two telegrams from the agent of the plaintiff, whose power to act for it in the matter is undisputed. The only question left is did the telegrams manifest consent on the part of plaintiff to the delivery? We do not see how any other rational construction can be placed on the language used; under the circumstances existing at the time they were exhibited to the carrier’s agent. When they were thus shown the carrier still had possession of the goods with *630knowledge that Carroll was the'consignee, for the bill of lading, though to “shippers order” contained a direction to notify Carroll. When, therefore, he presented the telegrams in question the defendant saw a further recognition of him as the consignee of the goods with authority “to use your stuff” and “get railroad inspection, and “receipt for same in damaged condition.” As he could not use the goods unless they were delivered to him, the first telegram clearly implied his right to receive them; but the second telegram went further, it expressly provided for the delivery of the goods to him by the carrier, by directing him to get the carrier’s inspection, and “receipt for the same in damaged condition.” This could not possibly have been done under the circumstances surrounding the parties at the time without a delivery of the goods for which the bill of lading was given. Our conclusion is that the language of the two telegrams, m the light of the status of the parties, involved a clear assent on the part of the plaintiff to a delivery of the goods by the defendant to the consignee Carroll. The learned trial judge, upon mature reflection, evidently deemed his ruling excluding the telegrams from evidence when offered by defendant on the trial, as erroneous, and that his instruction to find for plaintiff based on such ruling was erroneous. We think he did right therefore in awarding a new trial for error in the instruction given by him. It also seems to us that if it should appear on a new trial that the telegrams in question are genuine and were sent by the duly accredited agent of plaintiff , that there would be little, if anything, left to submit to the' jury. The judgment of the trial court awarding a new trial is affirmed, and the cause remanded.
All concur.