This being a nonsuit, the evidence for the plaintiff must be taken as true and in the most favorable aspect for him. It is true, as a general principle, that when there is a shipment by a common carrier upion an open bill of lading it becomes the agent of 'the consignee, but, as said by Hoke, J., in Buggy Corp. v. R. R., 152 N. C., 122, “It may be shown that, owing to the carrier’s default, the parties have rescinded the contract and restored the title to the consignor before the action brought, as in R. R. v. Guano co., 103 Ga., 590.” That case held that “Where a consignee of freight refuses to receive goods on account of damage done to them in the hands of the common carrier, and the goods are subsequently thrown back on the hands of the consignor, the latter has' a right to bring an action for such damage against the carrier. And other qualifying conditions might be suggested.”
The above principle has been cited and approved in Aydlett v. R. R., 172 N. C., 49, where, citing from the above case, and upon testimony almost identical with this, this Court said: “On account of bad condition of potatoes on| arrival, the consignee refused to receive them and notified the consignor at once.” Here the consignee refused to accept the shipment, and promptly notified the carrier. This Court held, in Aydlett’s case: “As a general rule, it is true that where goods are shipped upon an open bill of lading, the title passes to the consignee at the time they are delivered to carrier, and any ensuing damages must
Upon this nonsuit the testimony for the plaintiff must be taken as true that this shipment was in good condition when delivered to the express company and badly spoiled when it arrived at its destination, and the defendant put on no evidence to contradict either statement. Dr. Cutts testifies that he did not pay for it because it was spoiled and unusable. The defendant’s witness, its agent at Blue Ridge, testified that it was badly spoiled when it was delivered there.
It is very certain that the consignee could not sue for the damage, for he refused to accept the goods because it was spoiled; and if the consignor cannot sue, it would follow that the defendant would be liable to no one for negligence in the transportation of the shipment. The refusal of the consignee to accept the shipment because spoiled, and of the consignor in bringing this action, are the equivalent of an express agreement to rescind, and, indeed, a rescission in itself.
We think, therefore, that the case should have been submitted to the jury as to whether the shipment was damaged by the negligence of the defendant, and that the plaintiff is entitled to maintain this action upon the evidence set out.
New trial.