delivered the opinion of the court:

The Superior Court held, on a proposition of law submitted by the defendant, that under the pleadings and evidence in the case the plaintiffs could not recover. On this ruling the question is raised whether or not the plaintiffs show, by their declaration, such a cause of action as, under the law, they can maintain in their own names. It is useless to cite authorities in support of the proposition that they can not sue on the bills of lading, except in the name of the assignor for their use. Such is the settled law of this State. All agree that bills like these are but choses in action, not negotiable. Can the declaration be construed as counting upon any other cause of action than the contract to- carry, as set forth in said bills ? Plaintiffs say they “do not sue as the assignees of the contract, for this we could not do at law, but we sue as the assigns of the property,” and it is contended that the action is upon an implied promise, arising from defendant’s duty to carry and deliver the goods to the owner or holder of the bills of lading. That clearly is not the case made by the declaration. The contract there set up is not an implied contract, but an express one, as set forth in the bills of lading. The-breach of duty complained of is not merely a failure to carry and safely deliver, as required by law, but the breach of a contract to do so. While it is true that the assignment of the contract between Potter and the carrier for the shipment of the cotton vested the title to the goods in the plaintiffs, it did not transfer to them the contract of shipment, so as to entitle them to sue thereon in their own names, any more than would a bill of sale from Potter to them. If for any reason they desired to avoid the necessity of suing in Potter’s name for their use, and could have maintained the action upon an implied promise, they should have so declared. The action here being-based upon the failure to safely carry and deliver, and the-declaration showing that there was an express contract of shipment between the shipper and the carrier, it is difficult to see how the assignee of that express contract could ignore-it, and sue upon an implied liability to carry and deliver. When it is admitted that the bills of lading are non-negotiabley it must follow that the carrier can make any defense against an alleged' failure to carry according to his contract, when sued by one who has become the owner of the goods by a, transfer of the bill of lading, which he could have made against the shipper himself. His duty towards the goods is fixed by the terms of his contract, no matter who may be the owner of them. But however that may be, this can not be said to-" be a suit for any other than a failure to comply with the contract between Potter and the appellee.

It is said the declaration in the case of Larned against this appellee, reported in 103 Ill. 293, in which a judgment against it was affirmed, was precisely the same as that in this case. It is not claimed that the right of Larned to maintain that action in his own name was in any way questioned in this court, and certainly no such point was decided. Therefore that case is in no sense an authority on the point under discussion.

Again, if the action could be held to be based -upon a mere implied undertaking, we can see no escape for plaintiffs from the bar of the Statute of Limitations. The statute is, that. “actions on unwritten contracts, express or implied, must be brought within five years after the cause of action accrues, and not after.” To avoid that bar, the plaintiffs below replied that the contract sued on was in writing, and the argument is, that notwithstanding the plaintiffs could not sue on the bills of lading as assignees, still, inasmuch as the evidence upon which they base their title to the goods is in writing, therefore the action is on a written contract, within the meaning of the 16th section of the statute. By that section, if the action is upon a contract in writing, or if the action is upon other evidence of indebtedness in writing, the limitation is ten years. In either case the action must be upon the writing. It is not enough that the evidence by which the cause of action is supported is in writing. As already said, the cause of action here is the failure to safely carry plaintiffs’ goods. Can it be said that they had a contract in writing with the carrier ? If so, how did they get it ? Manifestly, by assignment from Potter, the shipper.

We think the Superior Court ruled properly on the question of the right of plaintiffs to maintain the action, and that its judgment was properly affirmed by the Appellate Court. In this view of the case, the question as to whether or not the-defendant is estopped, by the bill of lading signed by its agent at Texarkana, from denying the receipt of the cotton at that point, as against plaintiffs, as bona fide purchasers, relying on the acknowledgment in said bills that it had been received, becomes unimportant, and we decline to pass upon it.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.