The plaintiff's agent at the store told the drayman not to haul the rice until Monday. Late in the evening on Saturday, the agent of the railroad found that, while the drayman removed other freight from the car, he had left the rice. The agent of the defendant then resealed the car. On Monday morning it was found that four sacks of rice had been stolen from the car. The plaintiff demanded payment for the stolen rice, but payment was refused. This suit is brought for the value of the stolen rice and the penalty for nonpayment. The defendant set up that it was not liable, for the reason that it had delivered the full shipment on Saturday.

At the trial the claim for the penalty was withdrawn, because the claim filed was for $67.12, and the correct amount was $57.12.

At the conclusion of the testimony the plaintiff moved for a directed verdict. This motion was granted. The defendant appealed.

Practically, there is only one question in this case: Did his Honor err in directing a verdict? The answer is that he did err in directing a verdict for the plaintiff. Delivery is a mixed question of law and fact and should have been sent to the jury under instructions from the Court. See Whitney Co. v. R. R. Co., 38 S. C. 370, 17 S. E. 147, 37 Am. St. Rep. 767.

The judgment is reversed.

MESSRS. JUSTICE HYDRICK and WATTS concur.

MR. CHIEF JUSTICE GARY and MR. JUSTICE GAGE absent on account of sickness.

MANNING OIL MILL v. NORTHWESTERN R. R. CO. OF S. C.

(105 S. E. 343.)

CARRIERS-CARRIER'S RIGHT TO NOTICE OF CLAIM FOR DAMAGES HELD NOT WAIVED. Railroad did not waive its right to notice of claim for damages for shipment provided for by bill of lading, where it denied liability for such damages, and did nothing to mislead the shipper to its detriment or prejudice.

Before BOWMAN, J., Clarendon, October, 1920. Affirmed.

Action for damage to intrastate shipments. From order of nonsuit, the plaintiff appeals.

Messrs. DuRant & Elllerbe, for appellant, cite: Provisions of bill of lading as to time and place of filing claims may be waived: 70 S. C. 22; 98 S. C. 304; 42 S. C. 14; 43 S. C. 26; 84 S. C. 117; 88 S. C. 368; 70 S. C. 76. Deviation from the route of shipment agreed upon was evidence of intention of defendant to waive special stipulations of the contract of shipment: 81 S. C. 472. Cases involving interstate shipments (108 S. C. 88; 107 S. C. 25) not applicable.

Messrs. Purdy & O'Bryan, for respondent, cite: Waiver: 78 S. C. 471; 54 S. C. 603; 54 S. C. 371. Provision in bill of lading requiring notice of claim is reasonable: 4 S. C. 138; 71 S. C. 506; 101 S. C. 522; 108 S. C. 88; 107 S. C. 25. Necessary that there be some act in connection with claim, or some act caused to be done by claimant, after the forfeiture, by which it was waived: 84 S. C. 249; 98 S. C. 300. Company may waive form of presentation of claim by its silence, but not time of filing: 70 S. C. 16, and cases cited.

NOTE. For authorities passing on the question of waiver or extension of time stipulated in carrier's contract for claim or suit against carrier, see note in L. R. A. 1916d, 1049

The opinion of the Court was delivered by MR. JUSTICE WATTS.

This was an action for recovery of damages for two intrastate shipments of cotton seed and penalty as to each shipment. After issue joined the case came on for trial before Judge Bowman, and a jury. At the close of plaintiff's evidence defendant moved for a nonsuit, on the ground that the bill of lading issued by the plaintiff contained, in substance, that claims for loss, damage, or delay must be made in writing to the carrier at the point of delivery, or at point of origin, within four months after delivery of property, or, in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed, and, unless claims are so made, the carrier shall not be liable, and that the claims had not been filed within the time specified, and that as to the Camden hipment no claim had ever been filed at the point of shipment or the point of origin. Judge Bowman granted the nonsuit, and upon the further ground that there was no evidence of waiver.

The plaintiff appeals, and by two exceptions imputes

error.

The first exception complains of error because the provisions could have been waived, and, there being some evidence of waiver, that issue should have been submitted to the jury. The appellant did not make this point before the Judge, but a careful examination of the evidence shows no waiver. The plaintiff put in evidence in chief what he relied on to constitute waiver, and his Honor held that the correspondence did not show waiver, and there was no evidence of waiver. Over six months had elapsed before plaintiff put in its claim. Four months was the time it had to do it in. The defendant denied liability, and did nothing to mislead the plaintiff to its detriment or prejudice, and his

15 S. C. 115

Syllabus.

[115 S. C. Honor was correct in his holding as to there being no evidence of waiver. McKee v. McGhee et al., 103 S. E. 508. The second exception is taken under a misapprehension. It is not what his Honor ruled. His Honor's order of a nonsuit is granted upon the stipulation of the bill of lading and no evidence of waiver.

All exceptions overruled, and judgment affirmed.

MESSRS. JUSTICES HYDRICK and FRASER concur.

MR. CHIEF JUSTICE GARY and MR. JUSTICE GAGE absent on account of sickness.

10543.

MAYNARD v. CAMPBELL.
(105 S. E. 351.)

LANDLORD AND TENANT-TENANT HELD FROM YEAR TO YEAR AND NOT AT WILL; TENANT FROM YEAR TO YEAR ENTITLED TO NOTICE LOOKING TO END OF CALENDAR YEAR.-Where tenant began his occupancy of premises at a stipulated monthly rental, and for three successive years regularly attorned to landlord with no notice of change, he was not a tenant at will, but was a tenant from year to year, and before ejection under Civ. Code 1912, section 3509, was entitled to notice looking to the end of the calendar year.

Before SHIPP, J., Florence, November term, 1920. Affirmed.

Action by B. H. Maynard against W. A. Campbell. From judgment for defendant, the plaintiff appeals.

Messrs. Willcox & Willcox, for appellant, cite: Entry under a parol lease shall after twelve months have the effect of an estate at will only: 60 S. C. 400. If he remain after first twelve months under circumstances permitting inference of tenancy from year to year, such tenancy runs to end of calendar year: 66 S. C. 170. Mere fact of continuance in possession after termination of lease not sufficient to create tenancy from year to year: 113 S. C. 212; 102 S. E. 16.

Where there is no agreement for a new tenancy, the tenant holds as a tenant at will: 16 R. C. L. 1161.

Messrs. McNeil & Oliver, for respondent.

December 20, 1920.

The opinion of the Court was delivered by MR. JUSTICE WATTS.

This is an action brought for the purpose of ejecting a tenant holding over after the expiration of his contract under section 3509 of the Civil Code.

The magistrate held that the first year it was a tenancy at will after the 31st of December following the expiration of the first year. An appeal was taken from magistrate's Court to the Circuit Court, and Judge Shipp held:

"That the facts of the case show that it was a tenancy from year to year, and that in order to eject defendant reasonable notice must be given him looking to the end of the calendar year."

He reversed the decision of the magistrate and dismissed the case.

Plaintiff appealed, and by four exceptions challenges the correctness of his Honor's ruling. The exceptions are overruled under Wilson v. Rodeman, 30 S. C. 210, 8 S. E. 855. Mr. Justice McGowan, in that opinion, says:

"As we understand it, there are only two questions in the case: one of fact as to the character of the tenancy—whether it was indefinite as to its termination, and, therefore, 'from year to year,' and, if so, whether, as matter of law, the end of the calendar year should be fixed for its termination. There seems to be no dispute that the first renting in June, 1882, was indefinite as to time, except requiring the rent 'monthly;' that, under the statute, was to June, 1883, and, the defendant having held over, it became a tenancy from year to year."