Robinson, C. J.,
delivered, the opinion of the Court.
This is an action of assumpsit against the defendant, the owner of a line of steamers running between Baltimore and Savannah, Georgia, to recover the value of certain bales of cotton, in all valued at $23,500, described in three bills of lading, issued by the defendant’s agent at Savannah, and of which the plaintiffs became tona fide holders for value, in the ordinary course of their business as bankers. The breach set out in the declaration is the failure of the defendant to transport the cotton to Baltimore, and there deliver the same to the steamers of the North German Lloyd, for transportation to Bremen.
[13]*13The main question arises upon the demurrer to the defendant’s third plea, which alleges that the cotton mentioned in the bills of lading never was in fact delivered on board of the defendant’s steamer; and, further, that the bills of lading were issued without authority of the defendant, and in fraud of the defendant, by a fraudulent combination between one W. E. Guerard and Charles Green’s Son and Company.
If the cotton never was delivered on board of the defendant’s steamer, and this the demurrer admits, there could be no failure of contract on the part of the defendant to carry and deliver it to the shipper or his assigns, for the receipt of the goods lies at the foundation of the contract to carry and deliver. No principle is better settled by the commercial law, than that neither the master of the ship nor the agent of a transportation company has the right to sign bills of lading, until they have been actually put on board of the ship, or delivered into the possession of the company. And if a master or agent signs a bill of lading lor goods which have not been delivered to the carrier, the owner of the ship, or other means of transportation is not liable either to the shipper, or to one dealing with or making advances in good faith upon the bill of lading. It is hardly necessary to say that b.iLls of lading are not by the commercial law negotiable in the same sense as bills of exchange and promissory notes. They are merely the evidence of ownership, general or special of the property mentioned in them, and the right to receive said property at the place of delivery; and one making advances of money upon them does so at his own risk, and with notice of the limitation as to the power or rights of the master or agent to sign the same. Balto. & Ohio Railroad Co. vs. Wilkens, 44 Md., 11; Pollard vs. Vinton, 105 United States, 7 ; Friedlander vs. Texas, &c. Railway CGo., 130 U. S., 424; McLean vs. Fleming, Law Repts., 2 House Lords, Sc. 128.
[14]*14This is not disputed, but the plaintiffs in support of the demurrer rely on sections 1 and 2 of Article 14 of the Code. Section 1 provides, that all hills of lading, if executed in this State, or being executed elsewhere, which shall provide for the delivery of goods within this State, shall he negotiable instruments in the same sense as bills of exchange and promissory notes, unless it be provided in express terms to the contrary on the face of the bills, &c., &c.
And the second section provides that every such bill of lading shall be conclusive evidence in the hands of any bona fide holder for value thereof without notice to the contrary that the goods mentioned therein had been actually received by such person or corporation, notwithstanding that the fact may be otherwise, and that the officer or agent had no authority to issue bills of lading, except for goods actually received.
The provisions of the statute, it will be observed, are limited to bills of lading executed in this State, or being executed elsewhere, shall provide for the delivery of goods ivithin the State. And as the bills of lading in question were not executed in this Stale, but issued by the defendant's agent at Savannah, Georgia, the only question upon the demurrer is whether they provide for the delivery of the cotton in this State within the meaning of the statute? And this depends upon the construction and meaning of the bills of lading themselves, and upon the construction of the statute, as to what constitutes a delivery of goods in this State.
The parties to the bill of lading set out in the declaration are the defendant, the North German Lloyd Company and Green’s Son and Company, the shippers, or their assigns. What then is the contract thus entered into by these parties ? At the top of the bill of lading we find printed :
“Merchants’ and Miners’ Transportation Company and Norddeutscher Lloyd.”
[15]*15“From Savannah, Georgia, to Bremen via Baltimore and Bremerhaven.”
These head lines, as we read them, mean, and can only mean, the transportation of the goods mentioned in the bill of lading by the two companies, the Merchants’ and Miners’ Transportation, and the North German Lloyd, from Savannah to Bremen, the port of delivery, by the way of Baltimore and Bremerhaven. Then follows an acknowledgment of the receipt of the cotton to be transported by the defendant’s steamer to Baltimore, and there to be delivered to the steamer or steamers of the North German Lloyd for transportation to the port of Bremen, and there to be delivered unto order or assigns, he or they paying freight at the rate of fifty-four cents per hundred pounds. Then there is a stipulation, that the delivery of the cotton in good order to the North German Lloyd steamers at Baltimore, shall absolve the defendant from all liability in respect thereof, and that the liability of the North German Lloyd Company shall begin only upon the actual delivery of the cotton to their steamers at Baltimore.
Now the contract thus made between them was, it seems to us, a contract on the part of the two transportation companies to carry the cotton from Savannah to Bremen, and there to deliver it to the shippers or their assigns, on payment there by them of freight, at the rate of fifty-four cents per hundred pounds for the transportation over the entire route from Savannah to Bremen. Bremen was beyond all question the port of destination, for there the cotton was to be delivered to the order of the shipper, and until delivered no freight was to be earned, nor -was any to be paid. And as the route established by the two companies for the transportation of the cotton from Savannah to Bremen lay through the port of Baltimore, and as the line of steamers forming that portion of the through route between Savannah and Balti[16]*16more belonged to the defendant, and the line of steamers forming that portion of the through route between Baltimore and Bremen belonged to the North German Lloyd, it was agreed that the cotton should be transported from Savannah to Baltimore by the defendant’s steamer, and there delivered by the defendant to the steamer of the North German Lloyd, and to be carried on the steamer of said company over so much of the through route from Savannah to Bremen as lay between Baltimore and Bremen ; each company being responsible only for the carriage of the cotton over its portion of the through route.
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Robinson, C. J.,
delivered, the opinion of the Court.
This is an action of assumpsit against the defendant, the owner of a line of steamers running between Baltimore and Savannah, Georgia, to recover the value of certain bales of cotton, in all valued at $23,500, described in three bills of lading, issued by the defendant’s agent at Savannah, and of which the plaintiffs became tona fide holders for value, in the ordinary course of their business as bankers. The breach set out in the declaration is the failure of the defendant to transport the cotton to Baltimore, and there deliver the same to the steamers of the North German Lloyd, for transportation to Bremen.
[13]*13The main question arises upon the demurrer to the defendant’s third plea, which alleges that the cotton mentioned in the bills of lading never was in fact delivered on board of the defendant’s steamer; and, further, that the bills of lading were issued without authority of the defendant, and in fraud of the defendant, by a fraudulent combination between one W. E. Guerard and Charles Green’s Son and Company.
If the cotton never was delivered on board of the defendant’s steamer, and this the demurrer admits, there could be no failure of contract on the part of the defendant to carry and deliver it to the shipper or his assigns, for the receipt of the goods lies at the foundation of the contract to carry and deliver. No principle is better settled by the commercial law, than that neither the master of the ship nor the agent of a transportation company has the right to sign bills of lading, until they have been actually put on board of the ship, or delivered into the possession of the company. And if a master or agent signs a bill of lading lor goods which have not been delivered to the carrier, the owner of the ship, or other means of transportation is not liable either to the shipper, or to one dealing with or making advances in good faith upon the bill of lading. It is hardly necessary to say that b.iLls of lading are not by the commercial law negotiable in the same sense as bills of exchange and promissory notes. They are merely the evidence of ownership, general or special of the property mentioned in them, and the right to receive said property at the place of delivery; and one making advances of money upon them does so at his own risk, and with notice of the limitation as to the power or rights of the master or agent to sign the same. Balto. & Ohio Railroad Co. vs. Wilkens, 44 Md., 11; Pollard vs. Vinton, 105 United States, 7 ; Friedlander vs. Texas, &c. Railway CGo., 130 U. S., 424; McLean vs. Fleming, Law Repts., 2 House Lords, Sc. 128.
[14]*14This is not disputed, but the plaintiffs in support of the demurrer rely on sections 1 and 2 of Article 14 of the Code. Section 1 provides, that all hills of lading, if executed in this State, or being executed elsewhere, which shall provide for the delivery of goods within this State, shall he negotiable instruments in the same sense as bills of exchange and promissory notes, unless it be provided in express terms to the contrary on the face of the bills, &c., &c.
And the second section provides that every such bill of lading shall be conclusive evidence in the hands of any bona fide holder for value thereof without notice to the contrary that the goods mentioned therein had been actually received by such person or corporation, notwithstanding that the fact may be otherwise, and that the officer or agent had no authority to issue bills of lading, except for goods actually received.
The provisions of the statute, it will be observed, are limited to bills of lading executed in this State, or being executed elsewhere, shall provide for the delivery of goods ivithin the State. And as the bills of lading in question were not executed in this Stale, but issued by the defendant's agent at Savannah, Georgia, the only question upon the demurrer is whether they provide for the delivery of the cotton in this State within the meaning of the statute? And this depends upon the construction and meaning of the bills of lading themselves, and upon the construction of the statute, as to what constitutes a delivery of goods in this State.
The parties to the bill of lading set out in the declaration are the defendant, the North German Lloyd Company and Green’s Son and Company, the shippers, or their assigns. What then is the contract thus entered into by these parties ? At the top of the bill of lading we find printed :
“Merchants’ and Miners’ Transportation Company and Norddeutscher Lloyd.”
[15]*15“From Savannah, Georgia, to Bremen via Baltimore and Bremerhaven.”
These head lines, as we read them, mean, and can only mean, the transportation of the goods mentioned in the bill of lading by the two companies, the Merchants’ and Miners’ Transportation, and the North German Lloyd, from Savannah to Bremen, the port of delivery, by the way of Baltimore and Bremerhaven. Then follows an acknowledgment of the receipt of the cotton to be transported by the defendant’s steamer to Baltimore, and there to be delivered to the steamer or steamers of the North German Lloyd for transportation to the port of Bremen, and there to be delivered unto order or assigns, he or they paying freight at the rate of fifty-four cents per hundred pounds. Then there is a stipulation, that the delivery of the cotton in good order to the North German Lloyd steamers at Baltimore, shall absolve the defendant from all liability in respect thereof, and that the liability of the North German Lloyd Company shall begin only upon the actual delivery of the cotton to their steamers at Baltimore.
Now the contract thus made between them was, it seems to us, a contract on the part of the two transportation companies to carry the cotton from Savannah to Bremen, and there to deliver it to the shippers or their assigns, on payment there by them of freight, at the rate of fifty-four cents per hundred pounds for the transportation over the entire route from Savannah to Bremen. Bremen was beyond all question the port of destination, for there the cotton was to be delivered to the order of the shipper, and until delivered no freight was to be earned, nor -was any to be paid. And as the route established by the two companies for the transportation of the cotton from Savannah to Bremen lay through the port of Baltimore, and as the line of steamers forming that portion of the through route between Savannah and Balti[16]*16more belonged to the defendant, and the line of steamers forming that portion of the through route between Baltimore and Bremen belonged to the North German Lloyd, it was agreed that the cotton should be transported from Savannah to Baltimore by the defendant’s steamer, and there delivered by the defendant to the steamer of the North German Lloyd, and to be carried on the steamer of said company over so much of the through route from Savannah to Bremen as lay between Baltimore and Bremen ; each company being responsible only for the carriage of the cotton over its portion of the through route.
The contract of the defendant was, as we have said, for the transportation of the cotton from Savannah to Baltimore, and there to he delivered by the defendant to the steamer of the North German Lloyd for transportation to Bremen; and the argument is that the term delivery is used in the statute without any qualification, and is to he construed in its broadest sense, and that the delivery of the cotton by the defendant to the North German Lloyd at Baltimore, is a delivery within the meaning of the statute, even though the delivery was for the purpose of transportation out of the State, and even though the final port of destination was Bremen. To such a.construction of the statute we cannot agree. The Act of 1876, ch. 262, now codified as Article 14 of the Code, was, as we all know, passed within a few weeks after the decision in the case of Balto. Ohio Railroad Co. vs. Wilkens, 44 Md., 11, where in a suit by a bona fide purchaser of a bill of lading issued by the defendant’s agent, in the State of Illinois, for the transportation of certain car loads of grain to Baltimore, it was decided that the transportation company was not liable, because the grain had never in fact been delivered to the company. Bills of lading were not, the Court said, negotiable in the same sense as bills of exchange and promissory notes. Within a few weeks after the rendi-[17]*17tion of the judgment in that case, the statute now in question was passed, making bills of lading negotiable in the same sense as bills of exchange and promissory notes, and making them conclusive evidence that the goods therein mentioned had been delivered to the carrier, but the Legislature was careful to limit the provisions of the Act, to bills of lading executed in the State, or being executed elseivhere, provided for the delivery oí the property in the State. And by delivery of goods under a bill of lading, the Legislature meant and could only mean, it seems to us, such a delivery as is recognized by the commercial law under a bill of lading, that is a delivery' at the port or place of destination to the shipper or his assigns. It never meant the delivery of goods from one carrier to another carrier in transit through the State. And such was the contract of delivery' on the part of the defendant, — a contract to carry the cotton from Savannah to Baltimore, and there deliver it to the North German Lloyd, to be transported and delivered to the shipper or his assigns at the port of Bremen, the end of the carriage.
The liability' of the defendant for the transportation of the cotton ended, it is true, by the delivery of the cotton to the steamers of the North German Lloyd at Baltimore, but the two carriers had the right bey'ond all question to contract that each should be responsible to the shippers only for the safe transportation of the cotton over its respective portions of the through route to Bremen.
This limitation of their liability could not, however, in any manner affect the construction of the statute or give to the term “delivery'” as therein used, a meaning never contemplated by the Legislature. So by no fair rule of construction can it be said that the bills of lading in question provide for the delivery of goods in this State within the meaning of the Code. And, this being so, [18]*18the demurrer to the defendant’s third plea was properly .overruled, and the plaintiffs’ first, third, fifth, sixth and seventh instructions were properly refused.
We have treated the bills of lading as having been executed in another State, and so it seems to us they must be treated. The defendant was incorporated, it is true, under the laws of this State, but it was the owner of a line of steamers running between Savannah and Baltimore. It had an office and agents at Savannah for the purpose of receiving freight for transportation. The goods intended to be carried by the bills of lading were to be shipped to Bremen, and there to be delivered to the shipper or his assigns. They were never intended to be in Baltimore except for the purpose of being transferred from the steamer of the defendant to the steamer of the North German Lloyd, to be carried by the latter to Bremen, thus forming a continuous voyage between Savannah and Bremen. The contract purported to have been made by the bills of lading was a contract between the two transportation companies and the shipper, a citizen of Georgia. And such being the case, the bills of lading themselves must be considered as being executed in the State of Georgia.
We agree, too, there is no evidence from which it could be inferred that Guerard, the agent, was authorized by the defendant to issue the bills of lading before the delivery of the co.tton by Messrs. Green’s Son and Company. He had been in the habit, it is true, of' issuing bills of lading upon their promise to deliver to him railroad or cotton press receipts that the cotton had been received by the railroad or compress company for transportation by the defendant’s steamer. But this he did upon his own responsibility, and without, lie says, the consent or lcnoioledge of the defendant. And there was evidence offered, too, subject to exception, of a custom at the port of Savannah of issuing bills of lading, upon [19]*19railroad and cotton press receipts that the cotton had been received by the railroad or cotton press company for delivery to the steamers. But the bills of lading now in question were not issued by Guerard, the agent, upon either railroad or cotton press receipts, but upon the promise of Green and Company to deliver these receipts to him. And such evidence being irrelevant, it was subsequently stricken out on the motion of the defendant. And in saying this, we are not to be understood as intimating an opinion, that the defendant would have been liable upon the bills of lading, even if they had been issued by the agent in pursuance of such custom. That is a question which it is quite unnecessary to consider.
We agree too, that tlxero is no evidence of a ratificatioxx by the defexxdant of the unauthorized act of the agent in issuing the bills of lading. As soon as he found that Green and Company had failed, and were in fact unable to deliver to him the railroad and cotton press receipts according to their promise, he came to Baltimore, and for the first time informed the defendant as to his action irx the matter, and voluntarily offered to transfer his property to the proper officer of the defendant, to indemnify it from any loss it might sustain by reason of the issuing of the bills of lading. The defendant at once repudiated the unauthorized act of its agent, and at once denied all liability on account of the same. And the mere fact that it accepted a transfer of the agexxt’s property, voluntarily offered by hiixr to cover any loss it might sustain, cannot in any seixse be considered as a ratification or an acquiescence in the unlawful act of its agent.
As to the common count for money had and received by the defendant, for the use of the plaintiffs, it is only necessary to say, that no evidence was offered in support of this couxxt. The defendaxxt accepted a transfer [20]*20of property by Guerard, its agent, but this was not property belonging to the plaintiffs, nor was the transfer accepted by the defendant for their use. It was property belonging to the agent and transferred by him to the defendant, to cover any loss it might sustain on account of the issuing of the bills of lading by him. If no loss is thereby sustained, and if the agent be liable to the plaintiffs as bona fide holders of the bills of exchange, this liability may be enforced against him and against the property thus conveyed to the defendant. As there is no evidence from which the jury could reasonably find that the cotton mentioned in the bills of lading had been delivered to the defendant, or that the defendant had authorized their agent to issue said bills of lading without the receipt of the cotton, or that the defendant had ratified or adopted the act of the agent, there was no error in refusing the several prayers offered by the plaintiffs, and in instructing the jury that the verdict must be for the defendant.
In regard to the rulings of the Court- upon questions of evidence, we have but a word to say. The witness, Moller, having proved the signature of Guerard, the agent, to the bills of lading, was asked on cross-examination by the defendant, whether Guerard “was not forbidden to sign bills of lading for goods and commodities, when the goods and commodities were not actually delivered to the defendant company,” to which he replied, “never to my knowledge,” and then added that it was almost certain that he was not so forbidden, because it would have been prohibitory to business in Savannah, as the custom of the port was to sign bills of lading on railroad guarantees to deliver cotton to a specified steamer. This statement by the witness was in no manner responsive to defendant’s question, and was but the mere expression of his opinion, and not testimony based upon knowledge. The Court was also right [21]*21in refusing to allow the witness to testify as to the price of cotton in Baltimore, for the reason that the cotton mentioned in the bills of lading was to be delivered at Bremen, and not at Baltimore, and the damages, if any, which the plaintiffs could recover for breach of contract, would be the value of the cotton at Bremen.
(Decided 21st June, 1893.)
We do not see on what ground the third exception can be maintained. G-uerard the agent had signed, it is true, the bills of lading, acknowledging the receipt of the cotton, but it was beyond question competent for him to prove that the cotton had not in fact been delivered, and to explain the circumstances under which he was induced to sign them. And for the reasons already given, the evidence in regard to usage prevailing among the steamship companies to issue bills of lading upon railroad and cotton press receipts, was on motion of defendant properly stricken out. It was properly stricken out because the bills of lading now in controversy were not issued upon such receipts.
The evidence too in regard to the understanding among bankers in New York, that the buyer always assumes that the goods mentioned in a bill of lading have been actually delivered, was properly' excluded. The liability of the carrier under a bill of lading in no manner depends upon the understanding of bankers or brokers in the City of New York: but is governed and must be determined by the settled principles of commercial law.
Finding no error in the rulings below, the judgment will be affirmed.
Judgment affirmed.