It being admitted by all parties to tbis action tbat, according to tbe way-bill, tbe bill of lading, and tbe wheel report, as well as a matter of fact, tbe carload of fertilizer in question was loaded into and transported over tbe Atlantic Coast Line Railroad in Soo Oar No. 36,986, tbe title at once passed, wben it was so loaded, to tbe defendants Tucker & Nobles, tbe consignees, and tbe burden tben devolved upon tbe carrier represented by tbe Director General to show a delivery thereof to Tucker & Nobles, or tbat failure to deliver tbe same was not by default of tbe carrier. Tbe verdict of tbe jury determined tbat tbe said carload, which bad been transported in Soo Car No. 36,986, consigned to Tucker & Nobles at Munford Siding, was delivered by tbe railroad at said siding, but tbat said carload was never delivered to Tucker & Nobles, and tbat tbe value thereof was $1,701.

Tbe other finding, as to tbe plaintiff having erroneously notified Tucker & Nobles tbat tbe shipment bad been made in Soo Car No. 30,986, seems to have been much debated at tbe trial, and tbe issue as to tbat matter established tbe fact of tbis inadvertency, but we cannot see tbat it was very relevant or at all material.

In Mitchell v. R. R., ante, 162, it was held by Hoke, J., tbat under Revisal, 2632, as amended by chapter 461, Laws 1907, which, as amended, is now C. S., 3516, it is incumbent upon tbe common carrier of freight not only to ship tbe goods promptly, but it is negligence on tbe part of tbe carrier not to make delivery at destination within tbe time limited by tbe statute, which is not complied with “until tbe goods are in tbe company’s warehouse (or at destination) and notice duly given.” Tbe railroad agent at Greenville testified tbat no notice of tbe arrival of tbe shipment was given to Tucker & Nobles, and tbe testimony tbat they frequently inquired for it is uncontradicted.

Tbe carrier having received tbis shipment, consigned to Tucker & Nobles at Munford Siding, tbe title thereupon to tbe goods passed .to tbe consignees, and tbe duty devolved upon tbe carrier to notify tbe consignees upon tbe arrival of tbe shipment and to make delivery. Poythress v. R. R., 148 N. C., 390; Bank v. R. R., 153 N. C., 351.

*306 It was eminently proper, and indeed essential, to the disposition of the questions involved that the Director .General should -be made a party defendant.

The trial was incomplete, because the issues submitted did not decide the material matters necessary for a final judgment to determine the ultimate rights of the parties on each side as between themselves. Issues 1 and 3 were as to whether the plaintiff notified the consignees correctly as to the number of car, and number 4, whether the plaintiff corrected this error. In response to issue number 2, the jury found that the plaintiff shipped over the Atlantic Coast Line Railroad this 30 tons of fertilizer, consigned to Tucker & Nobles at Munford Siding, and that it was delivered by the railroad at said siding. In response to issue 5, the jury found that the defendants Tucker & Nobles did not receive the car of fertilizer shipped by the plaintiff to them; and in response to issue number 6 the jury found that the value of the said carload of fertilizer was $1,707.

The matters found on 2, 5, and 6 issues were not controverted by any evidence, and, in fact, were admitted by all parties. The real issue was as to whether the failure of the carrier to deliver was without default on its part. The case should go back for this additional finding of fact, and if found against the Director General, judgment should be entered in favor of the plaintiff and against the Director General. It would be superfluous to render judgment in favor of the plaintiff against the consignees with judgment over against the Director General.

In the language of the statute, C. S., 602, the judgment should “determine the ultimate rights of the parties on each side as between themselves”; and as held in Corp. Com. v. R. R., 137 N. C., 1: “Judgment should be entered on the material issues without regard to the immaterial issues.”

The evidence in this case upon the record shows no default on the part of the consignees, and no excuse for the failure of the carrier to notify the consignees and to deliver the shipment to them, but they should have opportunity now to produce such evidence, and the verdict should distinctly adjust the responsibility for the failure to deliver the goods.

New trial.