¶1 There is no exception to tbe refusal to set aside tbe judgment by default and inquiry, nor is tbe legal effect of tbe provision, *237 requiring tbe action to be brought witbin six months, before us, as the bill of lading was only admitted in evidence on the issue of damages.
¶2 The sole question presented is whether the judgment by default and inquiry prevents the defendant from relying upon the provision in the contract.
¶3 The effect of a judgment by default and inquiry is to establish the cause of' action alleged in the complaint, and if the recovery sought is damages, to give to the plaintiff the right to recover at least nominal damages, and no evidence is admissible tending to prove that no right of action exists.
¶4 In Hollifield v. Telephone Co., 172 N. C., 714, where there were two parties defendant, one of whom answered and the other of whom failed to answer, judgment by default and inquiry was rendered against the defendant who failed to answer. In discussing the question involved, the Court says: “He failed to plead and judgment by default was entered against him, which established as against him, under our procedure and procedure generally, the cause of action alleged in the complaint. Blow v. Joyner, 156 N. C., 140; Graves v. Cameron, 161 N. C., 549; Patrick v. Dunn, 162 N. C., 19; Plumbing Co. v. Hotel Co., 168 N. C., 577. It was not necessary to submit an issue as to this negligence, when he admitted it by failing to answer. Justice Brown well says in Plumbing Co. v. Hotel Co., supra: ‘The default is an admission of every material and traversable allegation of the declaration or complaint necessary to the plaintiff’s cause of action. 23 Cyc., 752. It admits all the material averments properly set forth in the complaint, and, of course, everything essential to establish the right of the plaintiff to recover. Any testimony, therefore, tending to prove that no right of action existed, or denying the cause of action is irrelevant and inadmissible/ citing Gerrard v. Dollar, 49 N. C., 176; Lee v. Knapp, 90 N. C., 171; Blow v. Joyner, supra; Graves v. Cameron, supra. This being so, the only thing left to do in regard to the resident defendant was the assessment of damages, after ascertaining the negligence of the other defendant.”
¶5 This authority covers fully the exception presented, and sustains the ruling that the provision of the bill of lading was inadmissible to destroy the plaintiff’s action.
¶6 No error.