Mr. Tanner before said delivery, that the bill of lading with the draft attached had been indorsed to plaintiff and was in the Canal Bank & Trust Company in New Orleans for collection, and that he had no authority or control over the same. A wrongful delivery having been made, defendant is liable for the market value of the consignment.

"When the potatoes were loaded at Tustin they were in good condition and were properly loaded. The evidence clearly shows that the condition in which they arrived at New Orleans was caused by the car not being properly ventilated while in transit.

"The defendant is therefore liable to the plaintiff for failing to properly ventilate the car while in transit, for the difference between their actual value on arrival in New Orleans, and the value of the same had the car been properly ventilated and the potatoes arrived in good condition.

"The market value of the potatoes at the time they arrived in New Orleans, if they arrived in good condition, would have been $1.53 per bushel, less the freight, making a total net value of $817.50.

"Plaintiff is entitled to recover under both counts in the declaration its damages in the sum of $817.50, with interest at 5 per cent. from April 20, 1912, to date, or $1,051.57.

"It is therefore ordered that judgment be entered in favor of the plaintiff and against the defendant for the sum of $1,051.57, with costs to be taxed."

Upon these findings judgment was entered against the defendant for $1,051.57 damages, with costs. The defendant, under the rule, prepared the following amendments to the findings:

(1) "The court finds that there was a general oral understanding and agreement between the plaintiff and E. F. Sherman, the shipper of the potatoes and the consignee named in the bill of lading, before and at the time of the indorsement of the bill of lading to the plaintiff by said Sherman, that if the draft at tached to the bill of lading was not paid the shipper and the consignee named, Sherman, would eventually pay to the plaintiff the amount of the draft."

(2) "The court finds that there was an agreement

between the plaintiff and the shipper of the potatoes, E. F. Sherman, who was the consignee named in the bill of lading, after the delivery of the potatoes covered by said bill at New Orleans without surrender of the bill of lading and before the commencement of this action, and during the pendency of this action, that the plaintiff would sue the defendant carrier for the purpose of recovering in this action for the benefit of both Sherman and the plaintiff, and if its action should fail the said Sherman would pay to the plaintiff the amount of the draft."

(3) "The court finds that Mr. Tanner was sent by Sherman, the shipper of the potatoes, to New Orleans to dispose of the consignment as speedily as possible, and had authority to dispose of them at once on account of the very warm weather prevailing at New Orleans, and was given authority to settle the matter as quickly as possible, and was authorized, if he could settle in no other way, to give a check for the difference on the car after sorting the potatoes and eliminating the shrinkage, and take up the drafts."

(4) "On or about April 23, 1912, and shortly after the departure of Tanner for New Orleans under instructions from Sherman, and before the potatoes were disposed of and delivered by the terminal carrier, the plaintiff knew of the refusal of the potatoes at New Orleans and the reason given therefor, and through its officer, Mr. Chichester, took the matter up with Mr. Sherman, and from him received full information concerning the sending of Tanner to New Orleans by Sherman, and knew that Tanner had gone there to dispose of the potatoes and settle the matter, and saw a copy of the letter written by Sherman to Tanner April 20, 1912, after his departure, and fully approved of Mr. Sherman's action in this connection in sending Tanner for the purpose of disposing of the potatoes."

(5) "That after such information received by the plaintiff from Sherman the plaintiff took no steps to revoke any authority given Tanner by Sherman or to repudiate his agency. On the contrary, plaintiff fully approved of his errand and authority."

(6) "That Mr. Tanner was the agent of said Sherman, and sent by him to New Orleans on or about April 20, 1912, for the purpose of disposing of the potatoes then in the custody of the carriers at that

place and awaiting disposal by said Sherman because of refusal by the Hortman Brokerage Company, who was notified of their arrival at that point."

(7) "That at the time the consignment left Tustin, and upon arrival of the same at New Orleans, the consignment had not been sold by Sherman to either the Hortman Brokerage Company or any other person, and there was no completed contract for sale then existing, nor existing at the time Tanner was sent by Sherman to New Orleans."

(8) "That Sherman was authorized by the plaintiff to represent any interest that the plaintiff had in the potatoes and to control any disposition of them during transit or after arrival at destination, and the plaintiff fully approved and ratified Sherman's act in sending Tanner to New Orleans, and the authority given him for disposal of the potatoes, and any settlement of the transaction that he might make, because of the immediate necessity of the disposal of the potatoes."

(9) "Shortly after his arrival at New Orleans, Mr. Tanner, the agent of both Sherman and the plaintiff, informed the Hortman Brokerage Company of his authority and the purpose of his presence there, and suggested to the Hortman Brokerage Company that it negotiate with Beer & Co. to take the good potatoes that should be left after the consignment was sorted. The Hortman Company submitted the negotiations proposed by Tanner to Beer & Co., and the proposition was accepted by Beer & Co. Thereafter, with his approval and knowledge, the potatoes were delivered to Beer & Co. after sorting."

(10) "Mr. Tanner, the agent, was present and ratified the act of the Hortman Company in making sale of the potatoes to Beer & Co."

(11) "Mr. Tanner and the Hortman Brokerage Company, his brokers, sold the potatoes to Beer & Co. at the prevailing market price at New Orleans, which was $1.20 per bushel."

(12) "After sorting, the potatoes yielded 27,130 pounds of good potatoes. The gross amount, at $1.20 per bushel, was $542.60. From this amount there was to be deducted freight of $150 upon the consignment from Tustin to New Orleans and the expense of sorting, $15.50, and weighing, $4.87, a total deduction of

$170.37, all of which was known and understood and approved by Tanner."

(13) "After delivery of the potatoes Tanner made no settlement, and did not attempt to make any settlement, with Hortman Company before he left New Orleans, and did not give or offer to give to the Hortman Company a check to cover the shrinkage, and did not ask or insist upon the Hortman Company taking up the draft."

(14) "Before departure from New Orleans, and after delivery of the potatoes, Tanner promised the Hortman Company that he would have Sherman send the bills of lading to the Hortman Company upon his arrival at Allegan."

(15) "While in New Orleans Tanner took charge of the sorting and weighing of the potatoes, made complaints to the representative of the Hortman Company, his broker, as to the manner of sorting, objected to the help employed, and upon his complaint and with his approval some of the sorting help were discharged by his broker, and Tanner gave away and permitted to be taken away from the sorting shed some of the good potatoes, and while in and about the sorting shed represented himself as the agent of Sherman, and assumed to have and asserted general authority over the disposition of the potatoes."

(16) "Tanner never informed any person connected with or representing the Louisville & Nashville Railroad Company, the terminal carrier, that the potatoes should not be delivered to Beer & Co. without payment of the drafts and surrender of the bill of lading. On the contrary, he represented himself to be the agent of the owner, and was the agent of the owner, whether the owner was Sherman or the plaintiff, and delivery was made to Beer & Co. upon his suggestion and with his approval."

(17) "There is no evidence in the case that the car containing the potatoes was not ventilated during transit, or that the car was not properly handled by the carriers in accordance with the shipper's instructions."

(18) "The evidence shows that the potatoes were a perishable commodity, and after arrival at New Orleans and at the time of the refusal, and before disposal by Tanner, were in such condition that it

was necessary to make immediate disposal of them, and that if they had not been speedily sold by Tanner through the medium of the Hortman Brokerage Company, his broker, it would have been necessary for the terminal carrier to sell them as perishable property, and because of the excessively warm weather, and the condition of the potatoes, and their perishable character, and their refusal at destination, they were sold by and upon the order of the shipper.'

"Proposed Amendments to Findings of Law.

(1) "This court finds as a matter of law that Tanner was the agent of the plaintiff while at New Orleans, and while engaged in his errand there, and during the sorting and disposal of the potatoes contained in the car in question."

(2) "That the car of potatoes in question were delivered by the Louisville & Nashville, the terminal carrier, upon the order of the shipper and consignee named and the owner of the potatoes and his and its agent."

(3) "That by reason of the failure of the plaintiff to repudiate or revoke the authority granted to Tanner by Sherman, the plaintiff is estopped to deny any authority in Tanner to dispose of the potatoes and to claim that delivery was made to the wrong person."

(4) "That as a matter of law the potatoes were delivered to the agent of the owner thereof, and no surrender of the bill of lading was necessary, and the delivery of such potatoes to the owner's agent was a proper and lawful delivery."

(5) "The court finds as a matter of law that the disposal of the potatoes at New Orleans in the manner disposed of was a necessity, because of their condition and perishable character, and that, to protect the interests of all persons concerned, the delivery was a lawful and proper delivery.”

Of the proposed amendments, No. 1 to the finding of facts was allowed, and all of the others were refused. Exceptions to such refusal were duly filed; also exceptions to the following findings of facts made by the court (and it is alleged that there is manifest