It appears in this case that the fountain was delivered to the carrier by the plaintiff, who had sold it to Reit-zel, and who received from the carrier an open bill of lading, by which the latter agreed to transport and deliver the fountain to the consignee, Reitzel, at Liberty, N. C., the shipment to be made over the lines of the two defendants. The case, therefore, is governed by the principle settled by this Court in Stone v. Railroad, 144 N. C., at p. 228, and Manufacturing Co. v. Railroad, 149 N. C., 261. In the former of these cases we held it to be “undoubtedly true that in the absence of any suggestion that the goods were not shipped ‘open,’ the delivery to the carrier taking a bill of lading to the consignee vests in the consignee the title to the goods, making the carrier liable to him for failure to transport and deliver. 'Prima facie the consignee is the owner of the goods in transit, the property therein vesting in the consignee upon delivery to the carrier, and he only can sue the car*21rier for nondelivery, tbougb a receipt was given to tbe consignor. Tbe carrier is entitled to consider and bound to treat tbe consignee as sucb owner, unless it is advised tbat a different relation exists, or unless notice of sucb fact is to be implied from tbe manner of shipment, as when goods are sent C. O. D.’ Moore on Carriers, 188; Tiffany on Sales, 195; Crook v. Cowan, 64 N. C., 743; State v. Patterson, 134 N. C., 612; Ober v. Smith, 78 N. C., 316.”
In tbe latter case tbe doctrine was tbus stated: “It is common learning tbat when tbe vendor delivers an article to tbe common carrier to be transported by tbe usual route to tbe vendee, taking an open bill of lading, tbe title to tbe article passes to tbe vendee or consignee. Tbis is true, although by tbe terms of tbe sale tbe vendee is to pay cash. For an injury to an article while in transit, or delay in transportation or delivery, tbe carrier is liable to tbe consignee. Stone v. Railroad, 144 N. C., 220.”
Tbe case of Stone v. Railroad was approved in Cardwell v. Railroad, 146 N. C., 218, in tbe following language: “When goods are delivered to a common carrier for transportation, and a bill of lading issued, tbe title, in tbe absence of any direction or agreement to tbe contrary, vests in tbe consignee, who is alone entitled to sue, as tbe 'party aggrieved,’ for tbe penalty given by section 1467, Eevisal. This is undoubtedly a correct decision, applying, as stated, where it appears tbat goods are shipped and tbe bill of lading taken to a consignee, without more.”
If tbe plaintiff bad shipped tbe fountain and taken a bill of lading requiring it to be delivered “to bis order,” or bad retained tbe title and control of tbe fountain in any other way, be would be entitled to recover for any damage to tbe property or for any delay or other default of tbe carrier. • He alleges, it is true, in bis complaint, tbat be retained tbe title, but tbis allegation is, denied by tbe defendant, and there was no proof to sustain it, and we must conclude, therefore, tbat there was no agreement with tbe carrier or tbe consignee to prevent tbe application of tbe ordinary rule which we have stated. If tbe plaintiff can show in another action tbat be retained tbe title to tbe fountain, be will be in a position to sue for any breach of contract by tbe defendant and recover tbe damages to which be may be entitled. We do not consider tbe other questions debated before us, for tbe reason tbat upon tbe record and tbe case, as they now appear, tbe court erred in refusing to sustain tbe motion for a nonsuit and dismissing tbe action.
Action dismissed.