Prince Line, Ltd. v. Steger , 210 S.W. 223 ( 1918 )

PLEASANTS, C. J.

This suit was brought by appellant against E. D. Steger, B. F. Yoakum, W, B. Ridgely, E. F. Cragin, WV B. Fariss, Hutchings, Sealy & Co., and the Missouri, Kansas & Texas Railway Company of Texas, to recover damages for the breach of a contract for the shipment of horses from Galveston, Tex., to La Pallice, France. The contracts sued on were executed by appellant as the carrier and E. D. Steger as the shipper, and were also signed by T. H. Andrews, agent of the above-named railway company, over whose lines the horses were to be transported to Galveston for shipment. The petition alleged that the other named defendants, except Hutchings, Sealy & Co., were partners of E. D. Steger in the transaction. Hutchings, Sealy & Co. were made parties under allegations that said firm held $20,000 which had been placed in their possession by defendant Steger to guarantee the performance by him of his said contract.

The defendant railway company answered by plea of non est factum, which was sustained by the uncontradicted evidence, and a verdict was instructed in its favor4

Hutchings, Sealy & Co. answered as stakeholders.

The defendants Yoakum, Ridgely, Cragin, and Fariss were served in New York with statutory notice. They made no appearance, and no judgment was rendered against any of them. Appellant contends that B. F. Yoakum was a citizen of this state, and judgment should have been rendered against him by default.

One of the two contracts sued on was for three voyages to be made by appellant’s steamer Portuguese Prince from Galveston to La Pallice. The portions of the contract material to this appeal are as follows:

“That the said owners agree to carry, and the said shippers agree to ship, on said steamship, for three consecutive voyages from Galveston, Texas, to La Pallice, France, horses to be furnished by shippers as required, and as hereinafter provided, which trips are to be made without steamer being employed for any other purpose.

“That the steamer is to be employed for the carriage of horses on the aforesaid voyages, and that shippers shall pay to the owners $75.-00 per head for all horses that the steamer is able to accommodate, in accordance with the United States regulations and specifications, regarding the necessary fittings. (The estimated capacity of the steamer is between 950 and 1,050 horses.)

“Shippers agree to deliver horses to the said steamer at the dock or wharf or place where she may be lying, wharfage or other charges on the horses to be paid by shipper. Each horse to be fitted with a halter and suitable rope for tying up in stall -provided, which halter will, being the property of the shippers, be taken ashore at the port of discharge, on the discharge of the horses.

“That after notice of readiness of the vessel to take on board the horses, not more than 48 hours shall be allowed to load the same. If more than 48 hours elapse before the horses are delivered to the vessel, shippers shall pay demurrage at the rate of eight cents per registered ton per day or. part of day.”

The other contract was for three voyages of aijpellant’s steamer Burmese Prince, and contains the identical provisions of the contract for the voyages of the Portuguese Prince above set out.

Plaintiff’s petition, after alleging the execution of the two contracts and reciting the terms thereof, contains the following allegations:

“Acting under and in pursuance of said contracts, plaintiff and defendant carried out the provisions thereof as to the first trip of the steamship Portuguese Prince, and as to the first and second trips of the steamship Burmese Prince, and as the plaintiff performed in every respect its obligations as to the remaining three trips, namely, one trip to be made by the Burmese Prince and two trips to be made by the Portuguese Prince. That the defendant utterly failed and refused to perform his contracts in any and all respects relative to said remaining three trips, and did as to said three remaining trips violate and breach his said contracts, causing thereby to plaintiff damages due to said breach (in the sum of to wit, $150,-000), which damages, though due and lawful demand therefor has been made by the plaintiff upon the defendant, defendant has utterly failed and refused to pay.

“That after making her first trip under said contract the steamship Portuguese Prince steamed from La Pallice, France, January 6, 1915, for the port of Galveston, where she arrived to receive her second cargo of horses on the 7th of February, 1915, but the defendant Steger utterly failed to provide said cargo of horses, and at his request and upon his repeated insistence and because of the lack of cargo or any cargoes of horses at Galveston said steamer was detained in said port until the 24th day of March, 1915, awaiting cargo, at which time, in compliance with the request of said Steger, and for his benefit and behalf, and as right and proper, the Portuguese Prince steamed from Galveston to New Orleans, reaching said port on the 26th day of March, 1915, where she was held awaiting to take on board a cargo of horses destined for Genoa to be furnished and shipped by Miller Bros, of Oklahoma, and applied to the said Steger’s contract; said horses arrived at New Orleans April 5, 1915, and were loaded April 6, 1915, and the Portuguese Prince steamed from New Orleans April 7, 1915, and carried said horses to Genoa, Italy, where she finished discharging said cargo on, to wit, May 3, 1915, all of which delay being caused by the defendant, and not caused by the fault of said vessel, her, owners or agents.

“That the vessel was thus kept and detained and used thereby over and above the contract period of use and detention 64 days, including 10 extra steaming days, due to the greater distance to Genoa as compared with La Pallice; and the reasonable value of such use, keeping, detention, and extra steaming days was $1,250 per day, a total sum of $SO,000, and additional coal was consumed, made necessary by said extra detention and steaming in the amount of 400 tons, of the reasonable market value of $3.30 per ton, being a total sum $1,320; that the extra cost for fodder, being the reasonable value thereof, on account of longer passage to Genoa as compared with the distance from Galveston to La Pallice, was $2,160. That the distance from New Orleans, La., to Genoa, thence to La Pallice, France, is about, to wit, 2,400 miles greater than from Galveston direct to La Pallice. That the freight money which would have been earned under the contract on 1,200 horses at $75 per head is the total sum of $90,000. That plaintiff admits that it received as freight money on the substituted cargo, $82.50 per head for 1,200 horses from New Orleans to Genoa, making a total of $99,000, less 5 per cent, commission paid to M. & R. Warriner, New Orleans, La., for procuring said substituted cargo, being the sum of $4,950 commission, leaving a remaining sum as freight money from New Orleans to Genoa on said substituted cargo, the sum of $94,050.

“That the expense of earning said $90,000, as per contract, being 1,200 horses at $75 per head from Galveston to La Pallice, would have been $32,222.16, which would have left the net earning or profit to the plaintiff on the trip of $57,777.84. The expense of earning the said $99,000 by hauling the substituted cargo from New Orleans to Genoa was $42,914.72, leaving a net income or profit arising therefor in the sum of $57,085.28, being $692.56 less than the net earning or profit which, would have arisen had the contract cargo been hauled from Galveston to La Pallice; that the number of days which the steamer would have taken under the charter party from La Pallice to Galveston to La Pal-lice was 56 days; the actual number of days required from La Pallice to Galveston to New Orleans to Genoa was 118 days, and the net profit the steamer would have earned in said extra 62 days consumed by reason of the default of the defendant is the sum of $63,968.19, which, added to the $692.56 above sot forth, makes the total loss to the plaintiff upon this voyage the sum of $64,660.75.

“That, owing to said breach of contract by defendant, the plaintiff had to hunt in the markets of the world employment for the Portuguese Prince in lieu of the third voyage of said boat, which had been contracted for by said defendant, and therefore as in duty bound the plaintiffs succeeded in getting a cargo of horses to be hauled from New York City to Brest, France, and the said Portuguese Prince pro ceeded from Genoa, Italy, May 3, 1915, to New York City, reaching said city May 22, 1915, and thereupon loaded 1.183 horses, steamed May 24, 1915, from New York, and reached Brest June 14, 1915, and received for transportation $50 per head for the horses, making a total sum of $59,150, said horses having been shipped by Mayer & Carpenter for account of J. H. Dunn of London, England, Borgham & Swift, agents.-

“The plaintiff admits having received said $59,150 as freight money on the substituted cargo, less 5 per cent, commission paid by plaintiff to Paul F. Gerhard & Co., and Thomas Harling & Son of New York City, said commission being $2,957.50, leaving the remaining sum as freight money from New York to Brest on said substituted cargo the sum of $56,192.50.

“That the freight money which would have been earned under the charter party sued on, on 1,183 horses at $75 a head, would have been $88,725, and the expense of earning said freight money would have been $29,122.75, which would have left the net earning or profit to the plaintiff on the trip of $29,602.25; the expense of earning the said $59,150 hy hauling ¿he substituted cargo from New York to Brest was $17,336.62, and plaintiffs received on account of demurrage or detention in New York, and on behalf of said Dunn, the sum of $2,250, which it hereby credits on account of damages for delay and otherwise herein sought by plaintiff, thus making the net income or profit arising from said substituted cargo the sum of $44,063.60, being $15,538.65 less than the net earnings or profit which would have arisen had the charter party been carried out as to this voyage. That the number of days which the steamer would have taken under the charter party was 47 days; the actual number of days required for the substituted cargo was 42 days; that the plaintiff therefore .credits as against this claim for detention, damages, and delay the average value of the net profits of the steamer at the rate of $1,267.65 per day, amounting for said 5 days to $6,340.67, leaving the total loss to the plaintiffs upon th,is voyage herein set forth the sum of $9,198.16, besides the commission item above of $2,957.50.

“That after making her second trip under said contract, which trip was made at Steger’s request to St. Nazaire, Prance, the steamship Burmese Prince steamed from St. Nazaire, February 1, 1915, for the port of Galveston, where she arrived to receive her third cargo of horses on the 27th day of February, 1915, but that defendant Steger utterly failed to provide said cargo of horses, and at his request and upon his repeated insistence, and because of the lack ■ of any cargo of horses to be had or obtained at Galveston, said steamer was detained in said port until about the 12th day of March 1915, waiting cargo, at which time, and for the benefit and in behalf of Steger, and as was right and proper, the Burmese Prince steamed from Galveston for New York, reaching said port the 19th day of March, 1915, where she was held, waiting a cargo of horses destined for Da Pallice, France, to be furnished and shipped by and on account of Dowler, Forbes & Go., and applied to said Steger’s contract. Upon the arrival of said horses at New York they were promptly taken on board, and the Burmese Prince steamed from New York March 24, 1915, and carried said horses to La Pal-lice, where she finished discharging said cargo on or about the 10th day of April, 1915 — all of which delay was caused by the defendant, and not caused by the fault of the said vessel, her owners and agents. The vessel was thus kept, detained, and used thereby over and above the contract period of use and detention, to wit, about 20 days, and the reasonable value of such use, keeping, and detention was $1,250 per day, a total sum of $25,000.

“Additional coal was consumed, made necessary by said extra detention, use, and keeping, in the sum of 75 tons, of the reasonable market value of $3.30 per ton, being a total sum of $247.50. That the extra working cost, being for wages, provisions, stores, marine insurance and storage, made necessary by said extra use, keeping and detention, was the sum of $2,310. The extra war risk insurance made necessary by said extra detention, use, and keeping was the sum of $400. That the freight money which would have been earned under the original contract on 1,111 horses at $75 per head is the sum of $83,325. The plaintiff admits that it received as freight money on the substituted cargo $50 per head for 1,111 horses, a total of $55,550, less 5 per cent, commission paid to Gerhard & Co. and Phillip Segaller of New York, for procuring said substituted cargo, being the sum .of $2,777.50 commissions, leaving a remaining sum as freight money from New York to La Pallice, the amount of $52,-777.50.

“That the expense of earning said $83,325, as per original contract, being 1,111 horses at $75 per head from Galveston to La Pallice, would have been about $28,073.20, which would have left the net earning or profit to the plaintiff on the trip of $55,251.70. The expense of earning the said $55,550 by hauling the substituted cargo from New York to La Pallice was, to wit, about $24,811.25, leaving a net income or profit arising therefrom in the sum of $30,738.75, being $24,512.95 less than the net earnings or profit which would and should have arisen out of the contract cargo had it been hauled from Galveston to La Pallice.

“That plaintiff collected 3 days’ demurrage at La Pallice at the rate of £ SO sterling per day, a total of £240 sterling or converted into American money at $4.81 per pound, being the. sum of $1,164.40, which plaintiff admits as a credit in behalf of defendant Steger. That the number of days which the steamer would and should have taken under the charter party for the trip in question'was 51 days; the actual number of days required for the substituted trip as above set forth was 69 days; and the net profit the steamer would have earned in said extra 18 days consumed by reasqn of the default of the defendant was the sum of $19,500.34, which, added to $24,512.95, makes the total loss to plaintiff upon this voyage the sum of $44,013.29.”'

The prayer of the petition is for recovery of damages in the sum of $150,000, with interest from January 1, 1915. -

Defendant Steger answered by general and special exceptions, by general denial and special pleas, alleging* that both of said steamers were taken away from said defendant Steger in an unreasonable time, no specified time being named in the contract during which time they should remain on demur-rage, and that plaintiff, immediately upon arrival of said steamers in port and immediately upon the expiration of 48 hours after the arrival of each steamer, demanded excessive, unreasonable, and outrageous de-murrage, to wit, the sum of $750 per day in lieu of the rate named in the charter party and contract which amounted to about $250 per day. Defendant further alleged that, both of said steamers having been taken away from him by plaintiff at the expiration of 48 hours after arrival, and said Steger having been declared in default, it was made the duty of the plaintiff, under the law, to use ordinary care in procuring for all of said remaining three voyages of said vessels substituted cargoes, so as to save or minimize the loss and damages, not only to the defendant Steger, but to the plaintiff itself, and that, had plaintiff exercised ordinary care i» procuring said substituted cargoes for tbe said remaining three voyages no loss or damage would have been sustained.

Defendant Steger further pleaded that, before he was in default and within a reasonable time under the demurrage clause of said contracts, he tendered and offered to plaintiff a1 shipment for the full capacity of both said vessels of 8,000 tons of hay, the cargoes to be carried from Galveston, Tex., to La Pallice, Prance, and agreed with plaintiff to pay therefor the sum of $15 per ton for each voyage or $120,000 for each voyage made in transporting said hay, and agreed at the same time to pay all expenses of remodeling said vessels to accommodate hay instead of horses, so as to net the plaintiff $120,00,0 freight for each voyage, instead of $75,000, the freight named in the charter party to be paid for transporting 1,000 horses.

Defendant further pleaded that, in lieu of the banker's guaranty provided for in the charter parties, $20,000 in cash was deposited by E. D. Steger in the bank of Hutchings, Sealy & Co., of Galveston where said deposit still remained at the time of the trial, to protect plaintiff in all engagements of said E. D. Steger as contained in said charter parties, and he prayed, plaintiff having suffered no loss or damage except through its own negligence, that he, said Steger, should go hence without day, and have decreed to him the $20,000 cash belonging to him on deposit in said bank, and he prayed for his costs.

By cross-action he asked for recovery of his $20,000 cash deposited in said bank, and for damages for breach of contract to transport 24,000 tons of hay, 8,000 tons to the vessel for each of the remaining voyages setting up his agreement with plaintiff to transport same at $15 per ton, and his readiness and willingness to load said hay and to pay his freight in advance, pleading a contract he had with the French government to ship 50,-000 tons of hay, 24,000 tons of which he had contracted to ship by said three steamers. He alleged the breach of this contract, as well as the contract for shipment of the horses, and asked in his cross-action a judgment for breach of contracts to ship his horses in the sum of $75,000 and breach of his contract to accept and carry his hay in said vessels in the sum of $120,000.

By supplemental petition plaintiff specially denied each and all of the material allegations of defendant Steger’s answer and cross-action.

The ease as thus made between Steger and plaintiff was submitted to a jury upon special issues, the issues submitted and the findings of the jury thereon being as follows:

“(1) Did the plaintiff and its agents use such care to avert or reduce the damage arising from defendant Steger’s breach of his contract for the performance of the second trip of the Portuguese Prince as a person of ordinary care would have done under the circumstances? Answer Yes or No.”

To this question the jury answered, “No.”

“(2) Did the plaintiff and its agents in sending the steamer Portuguese Prince on its third voyage to New York and taking cargo of horses to Brest, France, use such care as one of ordinary prudence would have done under the circumstances to avert or reduce the damages arising from the defendant Steger’s previous breach of the charter party for that vessel? Answer Yes or No.”

To this question the jury answered, “No.”

“(3) Did the plaintiff and its agents use such care as above defined to avert or reduce the damages arising from the defendant Steger’s breach of the charter party of the Burmese Prince by th'e failure to furnish cargo of horses on its third voyage and provide security, as one of ordinary care would have done under the circumstances? Answer Yes or No.”

To this question the jury answered, “No.”

“(4) Did the defendant Steger offer plaintiff’s agents cargoes of hay amounting to 24,000 tons at $15 a ton for the three voyages in controversy, and offer to pay for tearing out the horse fittings? Answer Yes or No.”

“To this question the jury answered “Yes.”

“(5) If you answer interrogatory 4 ‘No,’ you need not answer this one at all; but, if you answer ‘Yes,’ then state whether the agents of the plaintiff agreed to accept the cargo of hay at the price stated, and release the defendant from 'the charter parties? Answer Yes or No.”

To this questioh the jury answered, “Yes.”

“(G) Were the cargoes of hay referred to interrogatory 5 ever in fact tendered; that is, offered for loading to the plaintiff or its agents? Answer Yes or No.”

To which question the jury answered, “Yes.”

“(7) Should plaintiff or its agents, exercising such care as one of ordinary prudence would have exercised at the time and under the circumstances when the cargo of grain was tendered by the Steele Company for loading the Burmese Prince, have accepted the same or not? Answer Yes or No.”

To this question the jury answered, “No”

“(8) Could plaintiff have saved all loss and damage by the exercise of ordinary care in obtaining cargoes for the last two voyages of the Portuguese Prince? Answer Yes or No.”

To this question the jury answered, “Yes.”

“(9) Could plaintiff have saved all loss and damage by the exercise of ordinary care in obtaining cargo for the last voyage of the Burmese Prince? Answer Yes or No.”

To this question the jury answered, “Yesi”

Upon this verdict, judgment was rendered that plaintiff take nothing by its suit, and that defendant recover of plaintiff the sum of $24,000 as damages for the breach by plaintiff of the contract to transport defendant’s hay, and that defendant also recover i&e $20,000 on deposit with Hutchings. Sealy & Co.

Upon motion for new trial the court, as a cdndition to overruling the motion, required the defendant to remit the $24,000 damages recovered by him. This remittitur was filed, and appellee's right to recover this auaowt is not involved in this appeal.

Tlie evidence shows that when the Portuguese Prince reached Galveston on February 7, 1915, to receive her second cargo of horses, appellee Steger, because of inability to obtain their inspection by officers of the French government, to which government he had contracted to sell the horses, could not furnish horses for shipment in accordance with his contract with appellant. This steamer remained in Galveston until March 24th, when it went to New Orleans and took on a cargo of horses for Miller Bros, of Oklahoma, and carried them to Genoa, Italy. This shipment of horses was taken by appellant under a contract made by or through Steger with Miller Bros. This boat did not return .to Galveston after-its voyage to Genoa with the Miller Bros.’ horses, but went to New York, and there obtained a cargo of horses which it transported to Brest, France.

There is evidence showing that the costs and expense of the long delay of the Portuguese Prince at Galveston and waiting for the Miller Bros.’ horses, and the difference in net profits received for the transportation of the Miller Bros.’ horses and the shipment from New York to Brest, and the profits appellee would have received for transporting two cargoes of horses from Galveston to La Pal-lice under its contract with appellee Steger amounted to the sums claimed by appellant as damages for the breach of said contract by Steger.

The steamer Burmese Prince arrived in Galveston on February 27, 1915, to take her third cargo of horses under the contract with appellee Steger, but appellee failed to furnish the shipment of horses in accordance with his contract. This steamer remained in Galveston until March 12th and, being unable to obtain the shipment of horses from the appellee or shippers at Galveston, went to New York and secured a shipment of horses from that port to La Pallice, France.

There is evidence that the difference between the net profits to the Burmese Prince for transporting the horses from New York to La Pallice and what it would have made if appellee had furnished the horses for shipment at Galveston and the expense to said steamer caused by the failure of appellee Steger to furnish the shipment of horses in accordance with his contract amounted to the sums claimed by the appellant.

There is no question as to the failure of the appellee Steger to furnish the horses for shipment in accordance with the terms of his contract with appellant, and the trial judge so found, and the correctness of the judgment depends on whether the findings of th§£ jury that appellant could have saved all loss and damage by the exercise of ordinary care to obtain other cargoes in lieu of the three cargoes of horses which appellee Steger failed to furnish are sustained by fhe evidence.

Under appropriate assignments of error appellant complains of the charge of the court submitting each of the issues before set out, on the ground that there is no evidence to authorize the submission of such issues.

The first assignment is as follows:

“The court erred in overruling the following objection and exception made by the plaintiff to submission of question No. 1, viz.: ‘Objection and exception are made to question No. ‘1 for this, that it is a submission of the issue therein contained to the jury, and is not warranted by the evidence in the cause, the evidence revealing beyond dispute and beyond reasonable difference in the minds of men that plaintiff used that care and diligence that a person of ordinary care would under similar circumstances to reduce and avert the damages from Steger’s breach of the contract for the performance of the second trip of the Portuguese Prince, and the evidence further showing that the vessel Portuguese Prince upon said trip was held in port, not alone for the purpose of securing cargo, but also in response to the continued persistent demands of Steger that the boats be held at said port waiting the arrival of Steger’s horses to be transported thereon; that said vessel arrived February 7th, and went on demurrage February 11th and a reasonable time to hold the boat on demurrage rate in the charter party ceased on the 13th day of February, and that thereafter negotiations were had by Steger, resulting in subchartering the boat to Miller Bros, by the charter party in evidence dated March 3d, for delivery of horses March 12th, and that, owing to delay on the part of Miller Bros., acting under Steger’s charter party to them, and the interposition of the Texas quarantine, plaintiff and defendant understood the matter alike, and thereafter the Portuguese Prince steamed for New Orleans, and on the arrival of the horses took them for account of E. D. Steger to Genoa, and that the legal effect of the transaction from the testimony herein is such as to forever preclude and prevent defendant Steger from complaining of or availing himself of the defense as to said voyage of the Portuguese Prince that plaintiff did not exercise due diligence to avert or reduce the damage relative to said second voyage of the Portuguese Prince.’'”

[1] Under the second, third, fourth, and fifth assignments of error appellant complains of the submission to the jury of the issue of whether appellant could have, by using ordinary care to obtain other cargoes, saved all loss and damage occasioned by the failure of Steger to comply with his contract. The main proposition under each of these assignments is:

“Where the evidence in support of an issue by one having the burden of proof thereon is so slight that reasonable minds could not arrive at a different conclusion with reference thereto, the court should instruct the verdict for the other party.”

The trial of the case in the court below consumed two weeks’ time. A large number of witnesses testified, and the statement of facts covers many typewritten pages, but the fact issues presented by these assignments of error only require that from the mass of testimony in the record we find sufficient evidence to sustain the findings of the jury 'that, by the exercise of ordinary care in obtaining other cargoes, the appellant could have saved all loss and damage resulting from the failure of Steger to furnish the cargoes of horses in accordance with his contract.

The testimony shows that during the months of February and March, 1915, the exports from the city of Galveston included the following:

February, 1915. 450,793 bales of cotton.

2,700 rounfl bales.

March, 1915 . 369,332 bales of cotton.

4,529 round bales.

February, 1915. 17,716 long tons of oil cake.

March, 1915. 8,837 long tons of oil cake.

February, 1915. 6,400 tons of meal.

March, 1915. 3,460 tons of meal.

February, 1915. 3,655,366 bushels of wheat.

March, 1915.'.. 2,931,100 bushels of wheat.

There was a great scarcity of ships to carry these exports, -and ocean freight rates advanced rapidly and reached a very high figure. The contracts under which a large portion of these exports were shipped were made while the two ships of appellant before named were at Galveston and appellant had found that appellee Steger was unable to comply with his contract to furnish the cargoes of horses. No effort was made by appellant after it found that Steger could not furnish the horses to obtain any substitute cargoes other than horses.

While the testimony is conflicting upon the question of the expense appellant would have incurred in removing the fixtures placed in his ships to properly fit them for conveying the horses, and the profits appellant would have made by taking cargoes of cotton in lieu of the horses, there is testimony to justify a finding that the cotton cargoes would have netted appellant more than it would have made by carrying Steger’s horses under its contract with him.

Steger testified that after the arrival of the Portuguese Prince to receive its second cargo he came to Galveston, and offered appellant cargoes of hay for the two voyages of that ship and the one of the Burmese Prince for which he was unable to furnish the horses. He testified:

“At that time, February 20, 1915, I had a contract for the shipment of 50,000 tons of hay to France, to La Pallice and St. Nazaire, and *we were shipping from Galveston or Texas City. I came to Galveston. * * * I told him (David Warriner, the agent of appellant) that the contract was for 50,000 tons, and that we could begin to ship as soon as the vessel — one was then in port, my recollection is — as soon as the vessel could be fitted for it, and proposed to pay for the fitting of the vessel myself for the hay. I offered to pay for dismantling the vessel, and Mr. Warriner got the detail of the ship and figured what hay the ship would carry. I was figuring on using both vessels. Mr. Warriner figured that by taking out the horse fittings and space that had to be reserved for coal and men he could put into the vessel 8,000 tons. I had his figures for weeks. I gave him the^rate I was willing to pay, $15.00 a ton, and he agreed to carry the hay as a substitute cargo for horses. He agreed that I might use the vessels for the remainder of the trips for hay instead of horses; there were three remaining trips.”

A short time after this agreement was .made the agent of appellant notified Steger that it would not take the hay in lieu of the horses. Steger further testified:

“I had the hay and could, and would, have loaded both vessels with hay. Of the 24,000 tons that I contemplated carrying on these three Vessels, I shipped 4,000 tons at $16 per ton, 2,000 pounds each. I shipped 30,000 tons of the 50,000. The other 20,000 tons were never shipped, because, it was impossible to get vessels at a reasonable price to ship on. * * * I wished always to hold the boats for horses, but when they told me they woxildn’t be held for horses I was trying to get something else.”

The evidence shows thqt the two ships were of approximately the same size and carrying capacity.

Mr. Sgitovich, a witness for appellant as to the relative profits to the ship owner from a cargo of horses at $50 and $75 per head and a cargo of hay at $15 per ton, testified as follows:

“4,860 tons of hay at $15 is $72,900, long ton. Short ton would be approximately 10 per cent. less. Short tons would stow 5,443; at $15 per ton would bring it up to $81,645. I figured on 1,111 horses at $50 per head, $55,-550. The difference in favor of the hay is about $26,000. Assuming that 6,857 tons of hay could be carried, on the basis of 70 feet stowage, at $15, would amount to $102,750, and the difference between that and $55,550 would be $47,200. If there could be 6,857 tons of hay carried, the vessel would receive $47,200 more than for carrying the 1,111 horses at $50; 1,111 horses at $75 would he $83,325. Taking 'the figures for the carriage of the hay, $81,645, loaves a difference in favor of the horses of $1,680. Assuming that it cost $15 per head to feed’ and care for the horses, the cost of feeding and caring for 1,111 horses would be $16,665. That, deducted from $83,325, leaves $66,660 net revenue on the horses, and that, deducted, from $1102,750 (freight on 6,857 tons of hay at $15 on 70 feet basis), leaves a difference in favor of hay of $36,090. * * *

“Dead weight cargo is cargo such as grain, cotton seed meal, iron, and that class of cargo. We call it dead weight because you can always put the boat down to her full dead weight capacity without occupying her entire cubic capacity. * * * The cost of taking out the horse fittings would be at least $1,000. * * * I have not in these computations made allowance for all items that ought to be deducted from the gross earnings in order to arrive at net earnings of these cargoes. I have not, for instance, taken into consideration the question of additional time consumed. ⅛ That is the principal item. I do not know positively whether hay is chartered on the long or short ton. I know my calculations have always been made on' the long ton or English ton.”

Steger testified that the hay could have been pressed to a density of 70 cubic feet to the ton, and his agreement to pay $15 per ton was on that basis. He also testified, as above stated, that he had the hay in Galveston with which to load the ships.

It cannot be reasonably inferred from any of the testimony that the difference in the time that it would have taken to put the hay in the ship and the time it would take to place the horses on board would reduce the gross earnings from the hay cargo as much as $36,000, the excess of the gross eai-nings from the hay cargo over the earnings from the horse cargo, as fixed by the witness Sgit-ovich.

We think this evidence is sufficient to sustain the finding that the appellant would not have suffered any loss or damage by reason of Steger’s breach of his contract if it had accepted the cargoes of hay offered it by Steger in lieu of the horses.

[2] But, as set out in its first assignment of error, appellant insists that Steger is precluded from claiming that appellant should have accepted the cargoes of hay or used any diligence to procure other cargoes in lieu of the horses for the second voyage of the Portuguese Prince, because the evidence shows that said ship was held in the port of Galveston in response to the persistent demands of Steger that it be kept until the arrival of his horses, and that through Ste-ger’s negotiations the ship was subehartered to Miller Bros, on March 3d for horses to be delivered to the' ship at New Orleans on March 12th, and the cargo of horses furnished by Miller Bros, was transported by appellant by Steger’s procurement and consent.

We do not think Steger’s attitude in regard to holding the ship for his horse and his connection with the Miller Bros, charter party is inconsistent with his claim that appellant cannot hold him liable for damages for the breach of his contract which it could have averted by the use of ordinary eare to obtain another cargo after it found that Ste-ger could not deliver the horses for shipment under his contract. Steger testified .that he was anxious to keep the ships under his contract for transportation of his horses, and in order to do this was willing to pay de-murrage demanded by appellant, but if appellant would not do this he wanted appellant to substitute the hay in lieu of the horses, as it had agreed to do. His attitude in regard to the ships obtaining other cargoes is shown by his answer to the following questions propounded to him by counsel for appellant :

“Q. Hid you mean to be understood in any of these hay conferences as abandoning your contract rights to the Burmese Prince and Portuguese Prince, did you? A. I never did. If they were going to take them away from me I wanted them to ship my stuff I offered them to ship. I was still expecting at that time to be able to furnish horses for the Burmese Prince when she would come in. I was expecting inspectors, either fresh ones or some of those at work, to be turned over to me. They had a number of inspecting ports in the United States then, and not enough to go around. It would be a matter of comparatively few days after I got hold of the inspectors before I would have been able to deliver horses to shipside.

“Q. Isn’t it a fact that, inasmuch as you always expected to get the horses and never notified Mr. Warriner you couldn’t get the horses, isn’t it a fact that that explains why you did not make any protest by your letters or documents against plaintiff’s not moving the hay? Isn’t it a fact that, inasmuch as you always expected to get the horses and never notified Mr. Warriner that you could not get the horses, isn’t it a fact that that explains why you did not make any protest by your letters or documents against Warriner for not carrying hay? A. I preferred them to wait for horses, but protested most vigorously in Mr. Steele’s office in the presence of Mr. Warriner against his not carrying the hay after the boats were taken away from me. I can’t recollect as to the date— it was soon after these boats were taken away from me. It was after this trouble had all come up, and bills were being presented to me, or I had been notified bills would be presented to me. It was several months after March. At that time I protested vigorously at their taking the boats away from me and the failure to take hay.” ,

In answer to the question if he did not send a telegram while the Portuguese Prince was at Galveston, offering to pay $5,000 if ship was held to await his horses, he testified:

“I sent that telegram and made this offer (to pay the $5,000) because of the fact that I had $30,000 profit in each trip of this vessel (referring to horse shipments), and I was willing to pay $5,000 in order to have the vessel or the two vessels preserved for one or more trips or as many as I could use them for, and because of the further rea'son that it would have embarrassed me very much in my contracting ‘business to have had the ships taken away from me except in an agreeable way. * * • I was under contract to ship these horses on these vessels, and was doing my utmost always to hold them for the horses, but if they were not going to permit me to wait until my inspectors came, then I was trying to agree to any reasonable thing they wanted to do with the vessel and pay whatever amount was reasonable if they used it in any other way. I certainly did want the Portuguese Prince and Burmese Prince in February and March, 1915. I had horses waiting for inspectors. I had horses, but I couldn’t deliver them — until the French government was able to give me inspectors to inspect the horses I could not ship them.”

The undisputed evidence shows that the ship was not kept at Galveston at Steger’s request. Mr. Warriner, the agent of appellant at Galveston, testified:

“We didn’t hold the boat here at anybody’s request, but because we were not able to find any profitable business for her earlier. * * * When the Portuguese Prince was detained here nearly six weeks, we used every effort to obtain other employment for her.. Mr. Steele and ourselves were using every effort in that direction. That is the only purpose for which she was held here—she was not held at the request of Mr. Steger. Mr. Steger telegraphed to vai-ious horse dealers. I did not telegraph to any horse dealers—I telegraphed to our people in New Orleans; they were in communication with New York.”

Our conclusion is that the evidence is sufficient to sustain the findings of the jury, and none of the assignments above mentioned can be sustained.

[3] There was no willful breach of his contract to furnish the horses on the part of Steger, and. under well-settled principles of law if appellant could by the exercise of ordinary care have saved itself from loss by reason of Steger’s inability to furnish the cargo of horses, it was its duty so to do, and it cannot recover from Steger damages which it could have averted by the use of ordinary care. Heilbroner v. Hancock, 38 Tex. 715; Jones v. George, 61 Tex. 345, 48 Am. Rep. 280; Railway Co. v. Beeht, 21 S. W. 971; Steamship Co. v. Card (D. C.) 59 Ped. 159; Warren v. Stoddart, 105 U. S. 225, 26 L. Ed. 1117.

The case is not one which called for a charge upon the burden of proof; and, if a charge upon that issue had been necessary, the charge requested by plaintiff, the refusal to give which is complained of under the sixth assignment of error, clearly misstated the law, and was properly refused.'

The seventh and eighth assignments of error complain of the refusal of the court to instruct the jury to return a verdict in favor of plaintiff. It follows from what we have said in discussing the first five assignments that the court did not err in refusing to instruct the jury to find for plaintiff, and these assignments cannot be sustained.

[4] The ninth assignment complains of the action of the court in refusing to instruct the jury to return a verdict for plaintiff against the defendant B. E. Yoakum. As shown in our statement of the pleadings, Yoakum was made a party defendant under allegations that he was interested as a partner of Steger in the contract for the shipment of the horses. He was served with notice in New York, no citation having been served upon him in this state. He filed no answer in the case. In regard to Yoakum’s residence Steger testified:

“Benjamin E. Yoakum, I think, claims to live in Texas—he is in New York City—a railroad man. He is a native Texan. Mr. Yoakum’s business address in New York is 71 Broadway. I have known Benjamin P. Yoakum for something over 30 years. I knew him when he lived in Galveston, with the Santa Pé. * * * I have known Mr. Yoakum more or less intimately since I first met him. We were thrown a good deal together. I met him in Texas, in St. Louis—I am not sure, but it seems to me that he went to St. Louis before he went to New York. He has been in New York for a number of years. I do not know that at the time of this transaction and continuously since that time that Mr. Yoakum claimed he was a resident of Texas. I don’t know where he claims his residence now. I think I testified yesterday that he claims to he Texan, residing in New York, or something to that effect. I don’t remember that I testified that Mr. Yoakum claimed to be a citizen of Texas. So many things enter into where a fellow’s residence is —we used to s.ay where he had his washing done, and I don’t know.”

We think this evidence sustains the court’s finding that Yoakum was a resident of New York, and, not having been served with citation in this state, and having filed no answer, the court was without jurisdiction to render a personal judgment against him.

Assignments 10 and 11 complain of the verdict and judgment in favor of Steger for $24,000 on liis cross-action for damages for the failure of appellant to comply with its .contract for the shipment of hay. As we have before stated,' this judgment was remitted by Steger upon the hearing of plaintiff’s motion for a new trial, and the correctness of that verdict and judgment is not in issue on this appeal. The reason for presenting those assignments is not apparent. Any error in that verdict and judgment cannot possibly affect the portion of the judgment involved on this appeal. The assignments are therefore overruled without discussion.

[5] The twelfth and thirteenth assignments assail the-verdict and judgment as contrary to the charge of the court and the undisputed evidence, in that the court instructed the jury that J. H. W. Steele Company was the agent of Steger “in negotiations relative to the performance or nonperformance of the charter parties, and Steger was bound by the acts of his agents with respect thereto,” and that the Steele Company, by letter of March 3, 1915, promised plaintiff that Steger would be responsible for any damages that plaintiff might sustain in taking the Miller Bros, cargo of horses from New Orleans to Genoa, and the evidence further shows that the Steele Company, as agents of Steger, participated “in all the transactions relative to the moving and taking of cargoes of (both) said vessels and were fully conversant 'of said movements, and did not protest against the same.”

There is no merit in these assignments. As we have previously said, the efforts of Steger to obtain tbe Miller Bros.’ borses as a substitute cargo ior bis borses were made for tbe purpose of keeping alive bis charter party contracts, and bis offers to appellant were conditional upon, to state it in bis words, tbe ships not being taken away from him; and, when appellant refused to longer recognize any right in him under his charter parties, bis conditional promises were no longer binding upon him. Tbe failure of Steele & Oo. to .protest appellant’s acts in taking tbe ships from Steger could not affect the latter’s right to insist that, if appellant would not hold tbe ships for his borses, it must use ordinary care to obtain such substitute cargoes as would prevent loss by reason of bis breach of tbe contract.

Tbe remaining assignments of error all relate to the judgment in Steger’s favor for $24,000, and, for tbe reasons before stated, are not material to any issue involved in this appeal.

We are of opinion that the judgment should be affirmed; and it has been so ordered.

Affirmed.

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