dissenting. Tbe plaintiff agreed to sell to' tbe defendants a car-load of peanuts, tbe same to be shipped not later than tbe following Saturday from Scotland Neck, N. C., to' Petersburg, Va. On tbe last-mentioned day tbe goods were delivered to the agent of tbe Wilmington and Weldon Railroad Co., at Scotland Neck, tbe car-load •consisting of 223 bags. Tbe bill of lading called for 223 bags and tbe consignees were tbe defendants.
On tbe Monday following, and before tbe first freight train left tbe station for Petersburg, tbe plaintiffs, by permission of and with tbe consent of tbe freight agent, and without tbe defendant’s knowledge or consent, opened tbe car, placed therein 33 bags of peanuts in addition to the quantity delivered on Saturday, and tbe bill of lading was altered so as to conform to tbe addition to tbe car-load of tbe 33 bags.
Amongst tbe other facts admitted, it was agreed that 223 *41bags of peanuts is a car-load, and also that 256 bags is a car-load.
Upon tbe arrival of tbe peanuts a,t tbeir destination, tbe car-load of 256 bags was tendered to tbe defendants and they refused to receive tbe same. Tbis action was brought by tbe plaintiffs in a court of a Justice of tbe Peace, to recover damages for an alleged breach by tbe defendants of tbe contract of sale and purchase. Tbe defendants admit tbeir liability, if as a matter of law tbe plaintiff’s act in opening tbe car and placing therein tbe additional 33 bags of peanuts, and tbe tender of tbe 256 bags to tbe defendants, was not a breach of tbe contract on tbe part of tbe plaintiffs. It does not appear from tbe agreed and admitted facts whether tbe defendants knew of tbe change made by tbe plaintiffs in tbe original shipment, but as no reason is given why the defendants refused tbe same, Ave must take it that tbe refusal was because of tbe act of tbe plaintiffs in opening tbe car and putting in tbe additional 33 bags, and tbe tender to tbe plaintiffs through tbe railroad company of tbe cardoad of 256 bags, instead of the original shipment of 223 bags.
Tbe contract for the purchase of tbe peanuts was completed Avhen tbe plaintiffs on Saturday placed in tbe car the 223 bags, and tbe right of property therein passed to tbe defendants; but Avhen the plaintiffs, with tbe consent of tbe carrier, took possession of the car on Monday and placed therein tbe 33 additional bags, and tbe bill of lading altered to meet tbe added quantity, and tbe carrier tendered to tbe defendant tbe car-load lot of 256 bags, tbe defendants bad the right to refuse tbe car-load as tendered. Tbe contract, as we have seen, was completed on Saturday when the 223 bags were delivered to tbe carrier, and if tbe defendants bad received tbe car-load of 256 bags with a knowledge of tbe facts, tbey would have been bound to the plaintiffs for tbe price of the whole. And tbis view is in no way inconsistent *42with tbe legal effect of tbe delivery of tbe 223 bags on Saturday — tbe completion of tbe contract and tbe passing of tbe property to tbe defendants. Tbe plaintiffs and tbe carrier’s agent, by their interference with tbe car on Monday, and tbe tender to deliver tbe 256 bags' in Petersburg, prevented the delivery of the true quantity bought under tbe contract, and the defendants were not compelled to go into a lawsuit with tbe carrier to get possession' of tbe 223 bags, a part of the goods embraced in tbe bill of lading, and which part was not offered to be delivered. And tbe plaintiffs therefore can not recover any damages against tbe defendants for doing what they bad a light to do under tbe circumstances.