The J. R. Bever Co. consigned to its order at Cincinnati a carload of apples. The bill of lading provided for notification of F. Herier & Co. upon arrival of the car in Cincinnati, and permitted inspection of the car. Draft was drawn on Herier Co. for amount of apples and attached to bill of lading. When the car arrived Herier Co. was notified and refused the car on inspection.

Three weeks later the Bever Co. discounted the draft and was notified by the Bank holding it that it had not been paid. On Bever Co’s, inquiry to the Railroad Co. to show delivery, the company answered that the car was undelivered and rapidly deterioating. The Bever Co. attempted to divert the car to another point, but the car was seized by the Government and its contents sold.

Bever Co. brought suit against James Davis, Agent, to recover value of the apples, alleging negligence and carelessness in failure to notify the Bever Co. that there had not been an acceptance of the apples.

Judgment was rendered on the verdict in favor of the Bever Co. Error was prosecuted, on Davis who contented that when the Bever Co. consigned the car to itself and instructed the Railroad Co. to notify Herier Co., this designation of the party to be notified, designates him to be the agent of the shipper for the purpose of receiving notice of the arrival of the shipment. The Court of Appeals held:

1. Cases introduced to support the foregoing contention are contrary to the great weight of authority. The rule is that the carrier must notify the shipper of the refusal of the shipment.

2. The question of negligence was properly submitted to the jury and the verdict is fully sustained by the evidence.