delivered the following opinion:

A demurrer to the amended complaint herein was filed on January 9, 1923, and has been argued by the respective counsel, which demurrer rests upon the ground that the amended complaint is defective because it does not allege that the plaintiff or anyone on its behalf paid the defendant for transporting the sugar sacks described in the amended complaint; and also because there is no averment in the said amended complaint as to the condition of the sugar sacks at. the time they are stated to have been delivered to the defendant steamship company for transportation to Porto Pico.

I have examined with care the amended complaint and I find that it is distinctly alleged that in the month of October, 1.920, the steamship company received from third parties a large shipment from India, to Porto Pico by way of Pew York, which shipment comprised numerous bales of sugar sacks, each bale containing 400 sacks; that of this shipment -1-72 bales were to be shipped on a steamship controlled and operated by the defendant corporation duo to sail from New York on or about *569October 16, 1920, and thereupon the defendant steamship company issued their bill of lading therefor, whereby the defendant promised and agreed to take care of and safely to carry said 472 bales to San Juan, Porto Pico, and make delivery thereof safely to the order of the Bemis Brothers Bag Company, upon the surrender of the bill of lading of the initial line, properly indorsed, in consideration of a reasonable compensation agreed upon by said Bemis Brothers Bag Company, to be paid to the defendant therefor. And it is alleged that said goods were by the defendant steamship company negligently exposed to rain, as a result of which a large part of the shipment, viz. 46,617 sacks, became wet and damaged, reducing their value from 341 cents each to 4& cents each. It is further alleged in the amended complaint that the said original bill of lading issued by the defendant steamship company, and likewise the original bill of lading of tire initial company were duly indorsed to the plaintiff and that the plaintiff was the holder of the same at the time that said damages to the sacks arose,- and has been tbc-h older thereof ever since.

The court is of the opinion that this demurrer must be over- • ruled. With regard to the first ground, if the amended complaint is' true the plaintiff was not bound to pay the defendant for transporting the sugar sacks, according to the bill of lading, because the sugar sacks were never delivered in the condition in which they left New York. The amended bill of complaint specifically states that the contract of the defendant steamship company was not fulfilled by it.

With regard to the second ground, I am of the opinion that it is not necessary that the amended complaint should set forth the condition of the sugar sacks at the time of their delivery *570to tbe defendant steamship company at New York. The amended complaint specifically states that these sacks before they were damaged by the defendant steamship company had a value of 34 cents and after said damage their value was less than 5 cents. In my opinion this is a sufficient allegation to require the defendant to file an answer to the amended complaint.

Therefore the said demurrer is overruled, and the defendant is required to answer this amended complaint on or before the 3d day of February, 1923, furnishing a copy of such answer to the counsel for the plaintiff.

To this ruling counsel for the defendant excepts.