delivered, the opinion of the court.

This is an appeal from a j udgment denying the appellant a recovery for the value of a carload of apples shipped by the Mutual Cold Storage Company of Broadway, Va., to Lyle & Lyle, at Greenville, Miss.,, to whose rights thereto, and against the shipper, the appellant claims to have succeeded; the apples being rotten and unmerchantable when delivered.

The declaration alleges that:

“On the 24th day of March, 1920, the Mutual Cold Storage Company, of Broadway, Va., contracted to sell and *349deliver to Lyle & Lyle, merchandise brokers, of Greenville, Miss., a carload of apples, the terms of the sale being C. 0. 1). draft with bill of lading attached, Greenville, Miss., and that Lyle & Lyle, for value received, and with notice to the Mutual Cold Storage Company, sold, assigned, and transferred its contract of purchase to the plaintiff, and that the Mutual Cold Storage Company shipped said carload of apples, under said contract of sale, and assigned or transferred the bill of lading for said shipment to the First National Bank of Broadway, Va., the defendant in this suit, who thereby became the holder and owner of said bill of lading for said carload of apples and who made draft through its correspondent, the First National Bank of Greenville, Miss., garnishee herein, making the draft payable to the cdshier of the First National Bank of Broadway, Va. The draft, with bill of lading attached, was drawn on the firm of Lyle & Lyle,” etc. — but was paid by the plaintiff and thereupon the First National Bank of Greenville turned over to it the bill of lading for the apples, upon the presentation of which to the transportation company they were delivered to the plaintiff. When the car was opened the apples were found to be rotten and of no value. The amount sought to be recovered' is the amount of the draft paid by the plaintiffs, plus the freight on the apples. The evidence introduced on behalf of the plaintiff is in substance as follows: The plaintiff is a retail fruit dealer,' and Lyle & Lyle are merchandise brokers at Green-ville, Miss. The Jennings Fruit Company is engaged in the brokerage business at Roanoke, Va., and the Mutual Cold Storage Company is engaged in the wholesale fruit business at Broadway, Va. Lyle & Lyle telegraphed Jennings Fruit Company, at the plaintiff’s request, to ship to the plaintiff a carload of apples at a stipulated price. The Jennings Fruit Company placed the order with the Mutual Cold Storage Company, which declined to accept it for the reason that Itzig was not rated, and Lyle & Lyle, upon being so notified, telegraphed .the Mutual Cold Storage Company to ship the apples to them. The apples were sold f. *350o. b. Broadway, Va., to be properly packed in tbe car in which they were to be transported, and the car to be properly iced by the Mutual Cold Storage Company, for which a special charge was to be included in the bill to be rendered for the apples. The apples were shipped"by the Mutual Cold Storage Company and the bill of lading therefor was attached to a draft drawn by it upon Lyle & Lyle, in favor of J. J. Pennypacker, cashier, for the price of the apples, with direction to deliver the bill of lading to Lyle & Lyle on the payment of the draft. This draft was forwarded for collection by the First National Bank of Broadway, Va., of which Pennypacker is the cashier, to the First National Bank of Greenville, Miss. When the apples arrived at Greenville, Lyle & Lyle were notified, and Nance, its agent, thereupon obtained from the appellant a check for the amount of the draft and turned it over to the First National Bank of Greenville, Miss., and received from it in exchange therefor, the bill of lading for the apples, which, according to Nance’s testimony, he delivered to the railroad company with instructions to deliver the apples to the appellant. According to the testimony for the appellant Nance turned the bill of lading over to it, and the appellant then surrendered the bill of lading to the transportation company, paid the freight on, and received the apples.

The draft drawn by the Mutual Gold Storage Company in favor of Pennypacker, cashier, upon Lyle & Lyle was nbt purchased either by Pennypacker or by his bank, but was deposited Avith the bank by the Mutual Cold Storage Company for collection only.

The apples, according to the evidence for the appellee, were delivered to the railroad company at Broadway, Va., in good condition, were properly packed in the car, and the car was properly iced. The only evidence in contradiction thereof is that of three Avitnesses in behalf of the appellant, to the effect that, if the apples had been properly packed and the car properly iced, the apples would have reached their destination in good condition. The car of apples was in transit ten days, but there was no evidence *351as to how the car was handled, or of the circumstances and conditions by which it was surrounded while in transit.

Before the money collected by the First National Bank of Greenville, Miss., on the draft drawn by the Mutual Cold Storage Company on Lyle & Lyle was remitted to the First National Bank of Broadway, Va., the appellant sued out an attachment in the court below against the First National Bank of Broadway, Va., to recover from it the money paid for the apples plus the freight thereon, the ground of the attachment being that the bank is a foreign corporation, and suggested that the First National Bank of Greenville be summoned as a garnishee, which was accordingly done.

The attachment issue seems not to have been disposed of, but no point is made thereon, and it must necessarily have resulted in a judgment for the appellant, because the fact is that the First National Bank of Broadway, Va., is a foreign corporation. The case was tried on the declaration hereinbefore referred to, to which the First National Bank of Broadway, Va., filed a plea of the general issue. At the close of the evidence the court below, at the request of the appellee, peremptorily instructed the jury to return a verdict in its favor, and there was a verdict and judgment accordingly.

Among the questions presented to us for decision by this record are: First, whether the allegation of the declaration to the effect that Lyle & Lyle assigned to the appellant the contract by which the Miltual Cold Storage Company agreed to sell and deliver to them a carload of applés is supported by the evidence; second, whether the First National Bank of Broadway, Va., by accepting the draft drawn by the Mutual Cold Storage' Company on Lyle & Lyle for the apples with the bill of lading therefor attached, became thereby obligated to fulfill the Cold Storage Company’s contract for the sale and delivery of the apples; third, would the evidence have warranted the jury in finding that the Mutual Cold Storage Company violated its agreement either by shipping unsound apples or in not icing the car in which they were shipped?

*352Assuming, for the sake of the argument, that an assignment by Lyle & Lyle, of their contract with the Mutual Cold Storage Company for the purchase of the apples, would have vested in the assignee the right to recover from the Cold Storage Company for a breach of its agreement to properly pack the apples and ice the car, the evidence here falls short of proving any such assignment to the appellant and discloses, in fact, nothing more than a sale of the apples by Lyle & Lyle to the appellant.

The delivery of the bill of lading to the appellant by Lyle & Lyle, conceding that it was in fact so delivered, at most but vested the appellant with title to the apples, and did not constitute an assignment of Lyle & Lyle’s contract with the Cold Storage Company.

Omitting the second question presented for decision of this record as hereinbefore set forth, and coming now to the third, that is, “Would the evidence have warranted the jury in finding that the Mutual Cold Storage Company violated its agreement either by shipping unsound apples or in not icing the car in which they were shipped?” and assuming, for the sake of the argument, that the court below committed no error in admitting in evidence the opinion of witnesses that, if the apples had been sound when shipped and the car in which they were shipped had been properly iced, they would have reached their destination in good condition, that evidence is wholly insufficient to have warranted a finding by the jury either that the apples were unsound when shipped or that the car was not iced. For such an opinion to be of any value the witness must have taken into consideration the manner in which the car was handled and all of the circumstances and conditions which surround it in transit. And, for aught that appears to the contrary in the evidence, the circumstances and conditions surrounding the car while in transit may have brought about the decay of the apples without fault on the part, of the shipper.

Affirmed.