two of the three members of the firm of M. Schwartz & Sons, and asked them whether or not the signature of M. Schwartz & Sons on the back of the note was genuine, and told them the amount due upon it was unpaid, and that "he had exhausted every effort to get Mr. Dorf to pay it, and that unless it was paid he would reduce it to judgment," to which they replied that the signature was genuine, and that, "if Mr. Dorf did not pay it, they were able, and would pay it for him," and that the witness must "go ahead and sue" on it.

This conversation was denied, however, by the two Schwartzes referred to, who testified, substantially, that they did tell him that the signature was genuine, and made with the authority of the firm, but that neither of them said that the firm would pay the note if Dorf did not; that the firm, nor any member thereof, had not received notice before that time that the note had not been paid; that the firm had passed and indorsed notes for Dorf frequently; that the words "Protest waived" were not on the back of the note when it left their hands, and had been put there without the knowledge or authority of the firm or of any member of it.

During the cross-examination of the appellee he was asked what, in his opinion, was the effect of the words "Protest waived." On objection, the court refused to allow the question. This ruling was clearly without error. The effect of the words was matter of law, to be determined by the court; and the opinion of the witness was not admissible, as an expert, to vary the terms of a written instrument. Artz v. Grove, 21 Md. 474.

While the cross-examination of the appellee was being further continued, the appellants offered to read in evidence a letter written by the appellee to the maker of the note, bearing date two days before the time of the maturity of the note. It contained a statement of the time when the note would mature, a statement of the amount, and requested payment by the substitution of a new note. Appended thereto was a blank note, indorsed with the form in blank of a waiver of protest. This note was never executed, and there was no offer to show any connection with the transaction forming the subject of the present controversy. The court refused to allow it to go to the jury, and this action constitutes the appellants' second exception. The proposed evidence was irrelevant to any of the issues in the case, and was properly rejected.

The third exception was to the refusal of the court to allow the counsel for the appellants to ask the appellee, on cross-examination, whether Dorf told him it was accommodation paper. The appellee was a purchaser of the note in due course, and a holder for value; and in such case the accommodation party is liable, whether such holder at the time of taking the instrument knew him to be only an accommodation party or not. Rhinehart v. Schall, 69 Md. 356, 16 Atl. 126.

The fourth exception was to the overruling

of a motion of the defendants to exclude from the evidence the cause of action because of a material alteration therein; and the fifth was to the rejection of the six prayers of the defendants, and the granting of the plaintiff's prayer. The prayer granted was to the effect that if the jury find that, at the time the note was indorsed to the appellee, the words "Protest waived" were written above the name of M. Schwartz & Sons, and that after the maturity of the note, and the failure of Dorf to pay the same, the appellee presented it to the appellants, and that "two members of the firm acknowledged the genuineness of the firm name thereon, and promised and declared to the plaintiff that if the maker, Dorf, did not pay the said note, the indorsers, M. Schwartz & Sons, would pay the same, then their verdict must be for the plaintiff." It has been well settled for a long time that failure to give notice of dishonor of a bill may be waived, either before the time of giving notice has arrived, or after the omission to give the notice, and the waiver may be ex press or implied. This general principle, since the maturity of the note in question, has been formally incorporated in our statutes (Negotiable Instrument Act, c. 119, subc. 8, § 128); but it was long established, before the passage of that act. It also seems to be well settled that a promise by the indorser to pay the note, after there has been a failure to give due notice of its dishonor, will bind the indorser, provided he had full knowledge of the laches when the promise was made. The authorities to sustain this statement are set out in 4 Am. & Eng. Enc. Law (2d Ed.) p. 463, tit. "Bills and Notes," but we deem it unnecessary to refer to them more particularly, from the fact that our own court has clearly announced the same principle. In Turnbull v. Maddux, 68 Md. 587, 13 Atl. 334, the note was not protested at maturity, but the "plaintiff based his right of recovery upon the fact that the defendant promised to pay the note after its maturity, and with full knowledge of the fact that the note had not been presented for payment, at maturity, and that no notice had been given him of its nonpayment." "Notice," the court proceeds to say, "of the nonpayment of a note at its maturity, is the privilege of the indorser, but it is a right which he may waive, and he is considered to have waived his privilege, if, with the knowledge of that fact, he promises to pay the note." This prayer is, however, defective, in that it fails to require the jury to find as a fact that, at the time of the alleged promise, Schwartz & Sons had knowledge of the laches of the holder of the note. Without such knowledge, their promise would not bind them. Lewis v. Brehme, 33 Md. 433.

It is further objected by the appellee that the prayer ignores all the evidence with respect to its alteration. There was proof that when Schwartz & Sons indorsed the note the words "Protest waived" were not on the paIt then passed into the hands of Dorf,

person who so altered it, nor do the prayers submit to the jury the question as to whether it was so altered, but assume the fact. Moreover, if placed there by a stranger, without the connivance of any of the parties in interest, the words could be taken as a mere spoliation. 2 Am. & Eng. Enc. Law (2d Ed.) p. 214. They are both defective in these respects, and should have been refused. The defendants' second, fifth, and sixth prayers were properly rejected. The third was likely to mislead the jury. All that was necessary was to prove the facts set out by a preponderance of evidence. For the reasons given, the judgment must be reversed. Judgment reversed, and new trial awarded.

HOPKINS T. COWEN et al. (Court of Appeals of Maryland. Dec. 6, 1899.) SALE-GOODS SHIPPED IN VENDOR'S NAMEWHEN TITLE PASSES.

Plaintiff, in one city, ordered flour from a milling company, in another, without any express agreement as to terms of payment, and it was shipped in the company's name to plaintiff's city, but the bill of lading was indorsed "order," and "Notify W. L. H.," the plaintiff, and contained a stipulation that, in case of such an indorsement, the surrender of the bill of lading, properly indorsed, would be required before delivery of the property; and attached to the bill of lading was a draft, drawn by defendant on plaintiff, for the price of the flour; which draft and bill of lading were sent by defendant to a bank in plaintiff's city, with instructions to retain them until plaintiff paid the draft. Under previous course of dealing, similar shipments had been made, and plaintiff was always required to pay the draft before the goods were delivered. Held, that title to the flour did not pass to the plaintiff until payment of the draft.

Appeal from Baltimore city court; J. Upshur Dennis, Judge.

Action by William L. Hopkins against John K. Cowen and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Argued before McSHERRY, C. J., and PAGE, PEARCE, FOWLER, BOYD, and SCHMUCKER, JJ.

Chas. W. Heuisler, Richard B. Tippett, and W. S. Bansemer, for appellant. John T. Mason and C. S. Hayden, for appellees."

PAGE, J. The appellant in this case sued the appellees in replevin to recover the possession of 210 sacks of flour. The pleas are property in the appellees, and property in the Winnebago City Mill Company. At the trial, the appellant, to sustain the issues on his part, offered to prove that he had been engaged in purchasing flour from the Winnebago City Mill Company for a number of years; that on January 11, 1898, he ordered from the company the flour in question, "without any agreement as to the terms of payment," and that the flour was subsequently shipped by the said company to the appellant, at Baltimore city; that the course of dealing at and before that time was as follows, viz. the mill com

pany (whose place of business is in Winnebago City, Minn.), at the time of shipment, would draft for the value of the shipment, and attach thereto the bill of lading, and these drafts usually arrived a few days before the goods, and the appellant, as he needed the flour, would call at the banks where the drafts were placed by the company and were payable, and "take them up"; that all of the flour so shipped "was booked by the mill company as an absolute sale." Included in the appellant's offer was evidence of other sales and shipments by the mill company showing the general course of dealing between the parties, and also copies of the letters and telegrams of the parties respecting such sales, and of the checks of the appellant in payment of the several drafts of the mill company on the appellant. There also appears in the proceedings the bili of lading, and the draft attached thereto, which the parties agree may be considered by this court as if included in the offer of the .appellat, and incorporated in the bill of exceptions. The court below rejected this offer, and, the verdict and judgment being for the appellee, the appellant has appealed.

The action being in replevin, the burden is upon the appellant to prove an immediate right to the possession of the goods; and, inasmuch as the appellees have pleaded property in the Winnebago City Mill Company, they must show a title superior to that of the company. Lamotte v. Wisner, 51 Md. 561. The question, therefore, now before the court, is to determine whether the facts contained in the offer would be sufficient, if properly proved, to enable a jury, or the court sitting as a jury, to find that the title or the right of possession has passed from the mill company and become vested in the appellant. The flour in dispute was shipped from Winnebago City on January 21st, and about the same time the mill company forwarded by mail to the appellant an invoice, with the following words. appended thereto, viz.: "We have drawn on you at arrival of goods for the proceeds, with railroad receipt attached to the draft." By reference to the "receipt" or bill of lading, it appears that the flour was consigned to the company itself. Over the name of the consignee, the mill company, is written the word "order," and below the words, "Notify W. L. Hopkins," without any other condition or limitation. One of the conditions of the shipments, as appears printed on the bill of lading, is that "if the word 'order' is written thereon before or after the name of the party to whose order the property is consigned, without any condition or limitation other than the name of the party to be notified of the ar rival of the property, the surrender of this bill of lading, properly indorsed, shall be re quired before the delivery of the property at destination." The bill of lading, with draft attached, was sent by the mill company to the Western National Bank, at Baltimore, whose duty it was to retain possession of it until the. appellant had paid the draft. When such pay.

ment was made, the appellant was entitled to receive the bill of lading, and upon proper indorsement, by the terms of the bill itself and according to the usual course of dealings between the parties, the appellant was in a position to demand the possession of the goods. The flour arrived in Baltimore in due time, and the appellant was notified thereof by the railroad company. He made no effort, however, to pay the draft until the 4th of May. On that day he tendered his check, but the bank refused to accept it, and notified him that it had received notice on the previous day from the mill company not to accept payment of the draft from him. It also refused to deliver to him the bill of lading, although both the bill and the draft were then in its possession.

It is contended on the part of the appellant that all the facts, as we have stated them, establish the following propositions, viz.: (1) That a sale had been effected between the mill company and the appellant, whereby e title to the property became vested in the appellant; (2) that the agreement necessarily implied amounted to a complete contract of sale, with the stipulation that delivery of possession was dependent upon payment or tender of purchase price; and (3) that, when the appellant tendered his check in payment of the draft (having sufficient funds in bank to meet it), he had the right to the immediate possession of the flour.

The general rule applicable to the passing of title to personal property has been well stated in Dixon v. Yates, 5 Barn. & Adol. 313. In that case it was said by Parke, J.: "Where there is a sale of goods generally, no property in them passes till delivery, because until then the very goods sold are not ascertained; but when, by the contract itself, the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel, and to pay the stipulated price, the parties are then in the same situation as they would be after a delivery of goods in pursuance of a general contract. The very appropriation of the chattel is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel, and to pay the price, is equivalent to his accepting possession. effect of the contract, therefore, is to vest the property in the bargainee." The fundamental principle upon which this rule rests is to carry out the intention of parties who have agreed, "with respect to a thing capable of identification, that, for an agreed price, the title to the thing shall pass from the vendor to the vendee." Cheney v. Transportation Line, 59 Md. 565.

The

When the contract is express, there can be no difficulty; but when the evidence with respect to it is meager courts must endeavor "to ascertain the intent of the parties, and apply that test as a controlling principle." Hall v. Richardson, 16 Md. 412. So, also, where the agreement is for a sale of the property and the performance of other things, it must be ascertained whether the performance

of any of those things is meant to precede the vesting of the title in the vendee. Blackb. Sales, 151, cited in Benj. Sales, bk. 3, c. 3. Accordingly, it is held that where a buyer purchases a specific quantity of goods, to be shipped to him from a distant place, and the seller segregates and appropriates to the contract the specified quantity by delivering them to a carrier, the law presumes that to be equivalent to delivery to the vendee (16 Md. 412, supra); and in such case the goods become the property of the vendee, although they are to be paid for on arrival (Phosphate Co. v. Gill, 69 Md. 545, 16 Atl. 214, 1 L. R. A. 767), the carrier being regarded as the agent of the vendee to receive them. But, if the vendor undertake to make delivery himself at a distant place, the carrier becomes the agent of the vendor, and the property will not pass until delivery is made. In both such cases, the inference arising from the facts stated may be rebutted by other circumstances which tend to show what the interest of the parties really was. Dows v. Bank, 91 U. S. 618-637, 23 L. Ed. 214; Phosphate Co. v. Gill, supra. In the case last cited, where the goods had been consigned to the vendee, after stating the general rule that a bill of lading operates as a transfer of the property to the party in whose favor it is drawn and to whom it is delivered, the court remarks that "if the vendors in that case had wished to prevent the property from passing, and to retain the right to deal with it after shipment and while in transitu, they should by the bill of lading have made the cargo deliverable to their own order, and have forwarded the same to an agent of their own, to retain it until the cargo had been finally delivered, weighed, tested, and paid for in Baltimore." In Kentucky Refining Co. v. Globe Refining Co. (Ky.) 47 S. W. 606, 42 L. R. A. 358, the court said, citing from Alderman v. Railroad Co., 115 Mass. 233, "that when goods are consigned deliverable to the order of the consignor, and the bill of lading, with a draft for the price drawn on the purchaser of the goods, attached, is forwarded for collec tion, the purchaser has no title to the goods until the draft is paid and the bill of lading is indorsed to him." In Bank v. Bangs, 102 Mass. 295, it was said that a vendor "may take the bill of lading or the carrier's receipt in his own or in some agent's name, to be transferred on payment of the price, by his own or his agent's indorsement to the purchaser, and, in all cases when he manifests an intention to retain the jus disponendi, the property will not pass to the vendee." Hardy v. Munroe, 127 Mass. 64; Emery v. Bank, 25 Ohio St. 360; Railroad Co. v. Stern, 119 Pa. St. 29, 12 Atl. 756. In this case the mill company consigned the goods deliverable to its own order. It forwarded the bill of lading, with the draft attached. All parties understood that the former was not to be given up by the bank until the latter had been paid; and, by the terms of the bill of lading, it was provided that the flour was not to be deliv