majority"> *364 Ethridge, J.,

delivered the opinion of the court.

The appellant brought suit against the director general to recover the value of a carload of bananas shipped from S. Zemurray of New Orleans, La., to the Giardina Produce Company, at Greenwood, Miss., during the year 1919. The facts disclosed by the record are about as follows:

The Giardina Produce Company ordered a carload of “turning” bananas to be shipped to it at Greenwood, Miss. The bananas were duly and properly packed for shipment and delivered to the Illinois Central Railroad Company. The refrigerator car was properly iced, the north vents closed and sealed, the south vents being open, in order to retard the ripening of the bananas. When the bananas reached Greenwood, they had been delayed, and the ice had all melted, and the bananas were in an overripe condition, which made it impractical to sell them in the usual course of business, because they could not be properly handled in that way before they would spoil. Consignee refused to receive the bananas, and reported to the director general that it would not receive the bananas in the condition they were in, but would be willing to take them and sell them to the best advan *365 tage for the account of the director general. Thewitnesses for the plaintiff testified that the station agent of the director general at Greenwood, Miss., was present when the bananas were inspected, and this agreement was made, but the agent of the director general testified that he acted upon the statement of a member of the partnership styled Giardina Produce Company as to the condition of the carload of bananas, but that, as a matter of fact, the bananas were not overripe and were in good condition, and that the agreement made to have the Giardina Produce Company sell the bananas for the account of the director general was induced by fraudulent representations. The Giardina Produce Company did sell the bananas by putting three or four trucks into service and peddling them out at retail, selling the bananas for a given sum, which was turned over to the agent of the director general and receipted for by him, and remitted by said local agent of the railroad company being, operated by the director general. Nothing further was done about the matter until this suit was brought by the receiver, the appellant, some three years later.

When suit was brought, a plea was filed in addition to the general issue setting up that the arrangement made as above detailed between the agent of the director general and the Giardina' Produce Company was induced by fraud, and that, as a matter of fact, the bananas were not unreasonably delayed in transit, and were not in an overripe condition.

Since the above transaction, and before the filing of this suit, the Giardina Produce Company has been dissolved and a receiver appointed. The agent of the director general at Greenwood, who made the arrangement with the produce company to sell the carload of bananas for the account of the director general, left the office of the director general at Greenwood, being transferred to another place, and was succeeded by another agent, who *366 received and receipted for the money after the bananas were sold.

It is admitted that the car was delayed in transit at least one day, and the fact that the car was without, ice when it arrived at Greenwood is not disputed by the evidence. The facts as to the condition of the bananas is not disputed by any direct eyewitness, but the director general relies upon expert testimony to the effect that, if the car of bananas was properly loaded and properly iced, the fruit would not deteriorate during: the time that intervened, and should ,be in good condition. There was a tender of the money made by plea at the trial, but there is no showing that any offer to repay was made at any time between the receipt of the money and the bringing of this suit, nor was there any proof of any rescission after notice or after a reasonable time in which to learn the facts. The director general kept the money until after suit was brought.

The testimony for the plaintiff tended to show that the director general agreed to pay S. Zemurray at New Orleans for the car of bananas, and tended to show that the Giardina Produce Company at Greenwood had not in fact paid Zemurray at New Orleans for the bananas. That feature of the case was not properly developed.

There was a peremptory instruction for the director general except as to the amount tendered in court, and judgment was entered in favor of the railroad company, except it directed a recovery of the amount originally paid the director general with interest. From this judgment this appeal was prosecuted.

We think it was error for the court to give the peremptory instruction under the facts stated. The pleadings of the director general show that it did not carry out its contract to pay Zemurray, and that it repudiated that contract and tendered a part of the demand sued for by the plaintiff. It is certain therefore that the director general did not satisfy Zemurray. We *367 think the question should have been submitted to a jury, on proper instructions to find the facts.

The judgment will therefore he reversed, and the cause remanded for a new trial.

Reversed and remanded.

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