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4. That said bill of lading expressly provided that said apples were consigned to the order of this plaintiff at said Bainbridge, Georgia, and that they should not be delivered to any one except upon the production and surrender of said bill of lading properly endorsed by the plaintiff and presented and surrendered to the carrier at said point of destination by the person to 14 whom delivery should be made at said point of destination.

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5. That pursuant to said agreement of shipment and in accordance with custom, this plaintiff endorsed said bill of lading in blank and attached to the same a sight draft drawn by himself upon Maddox Grocery Maddox Grocery Company, Bainbridge, Georgia, for Four Hundred and Fiftyeight Dollars ($458.00), the value of said apples, and forwarded said draft with said bill of lading attached through banking channels to the State Bank at Bainbridge, Georgia, with instructions to said Bank not to deliver said bill of lading to said Maddox Grocery Company, or to anyone, until it paid said draft to said Bank for the benefit of plaintiff.

6. That upon said draft and said bill of lading being received by said Bank at Bainbridge, Georgia it presented said draft to said Maddox Grocery Company and demanded payment thereof and tendered said bill of lading to said Maddox Grocery Company, provided it paid said draft; that said Maddox Grocery Company refused and declined to pay said draft, and said bank thereupon refused to deliver and did not deliver said bill of lading to said Maddox Grocery Company,

or to anyone, but returned said draft and said bill 17 of lading to plaintiff, who has ever since retained and still does retain, the same, and that said bill of lading has never been surrendered or delivered to said Maddox Grocery Company or to defendant's connecting carrier at said Bainbridge, Georgia, the place of destination and consignment of said apples, or to the defendant or to any carrier or to anyone.

7. That said apples were received by the defendant's connecting carrier at Bainbridge, Georgia, the point of destination, prior to January 1st, 1912.

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8. That notwithstanding the non-presentation and non-surrender of said bill of lading to the defendant's connecting carrier at Bainbridge, Georgia, the defendant or its said connecting carrier, prior to January 1st, 1912, wrongfully and unlawfully and without authority delivered said apples to some party other than plaintiff, without any authority from plaintiff and against plaintiff's express orders and contrary to the express provisions of said bill of lading and without the production or surrender thereof, and that 20 thereupon said other party secured possession of said apples and retained the same, and plaintiff has never received said apples, or any part thereof, or the value of said apples, or any part of the value thereof.

9. That said apples were and always have been the property of plaintiff, and remained and were to remain his property until said draft was paid and said bill of lading duly presented and sur

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rendered to the defendant's connecting carrier at Bainbridge, Georgia, by plaintiff's authority.

10. That thereby the defendant and its connecting carrier have wrongfully and unlawfully delivered plaintiff's said apples to some other party without the authority or consent of plaintiff, and contrary to the terms of said bill of lad22 ing, and thereby have converted the same and deprived plaintiff of his said property.

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11. That the value of said apples was Four Hundred and Fifty-eight Dollars ($458.00), and that plaintiff has never received from anyone the value of said apples, or any part thereof.

12. That the carrier at the point of destination was either the defendant itself or a connecting carrier of the defendant, to which said apples were delivered by the defendant or by its authority, for transportation to said Bainbridge, Georgia, the point of destination.

13. That pursuant to the laws of the United States by what is known as "The Carmack 24 Amendment" of June 29th, 1906 (34 U. S. Statutes at Large, 584, Ch. 3591), to what is known as "The Interstate Commerce Act" of February 4th, 1887 (24 U. S. Statutes at Large, 379, Ch. 104), the defendant is liable for the fault and negligence of the carrier at the point of destination of said apples, in wrongfully delivering the same to said third party, as hereinbefore set forth.

14. That within four months after the delivery of said apples to the defendant at said Gasport,

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New York, the plaintiff made a claim in writing against the defendant for the loss of said apples and the value thereof, substantially as hereinbefore set forth, and delivered the same to the defendant at Gasport, New York, the point of origin of shipment, as is provided by one of the conditions of said contract or bill of lading, and demanded payment thereof; and that defendant has neglected and refused and still does neglect 26 and refuse to pay plaintiff's loss and damage, or to recognize plaintiff's claim.

15. That plaintiff has duly performed all of the conditions upon his part required by said contract with the defendant, to wit: said bill of lading, and has performed all of the obligations imposed upon him thereby.

II.

As a SECOND CAUSE OF ACTION:

16. That the plaintiff now resides and during all the time hereinafter mentioned has resided in the County of Niagara, in the State of New York.

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17. That defendant now is and during all the 28 time hereinafter mentioned has been a domestic corporation created and existing under the laws of the State of New York, and having its principal office and place of business in the City of New York, in said State, and operating various lines of railroads throughout the State of New York and through other states of the Union and engaged as a common carrier in interstate commerce shipments and transportations between the State of New York and other states of the

29 Union, and particularly between Gasport, in said State of New York, and Bainbridge, in the State of Georgia, and that in the conduct of such interstate commerce carriage the defendant utilizes connecting carriers to deliver its shipments from the State of New York to said Bainbridge, Georgia, and other localities.

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18. That on December 6th, 1911, at Gasport, New York, plaintiff and defendant, for a good and valuable consideration, entered into a written agreement executed by the defendant and delivered to and accepted by the plaintiff, whereby, as such common carrier, the defendant agreed to transport for the plaintiff from said Gasport, New York, to said Bainbridge, Georgia, one hundred and sixty-nine (169) barrels of apples by 31 route designated as "Seaboard Despatch"; that said agreement was delivered by defendant to plaintiff on said December 6th, 1911, and was what is known as a bill of lading, and coincident therewith plaintiff delivered to defendant for such transportation said one hundred and sixtynine (169) barrels of apples.

19. That said bill of lading expressly provided 32 that said apples were consigned to the order of this plaintiff at said Bainbridge, Georgia, and that they should not be delivered to any one except upon the production and surrender of said bill of lading properly endorsed by the plaintiff and presented and surrendered to the carrier at said point of destination by the person to whom delivery should be made at said point of destination.

20. That pursuant to said agreement of shipment and in accordance with custom, this plain