On Motion for Rehearing.
After giving full consideration to tbe very able motion for rehearing filed by counsel for appellant, tbe majority of the court have reached tbe conclusion that it should not be granted. Justice GRAVES dissents from, this conclusion and will file a written statement of the grounds of his dissent,
The Question of whether the trial court erred in submitting to the jury the issue of the exercise of ordinary care on the part of appellant to avert or reduce the damage arising from the failure of appellee Steger to comply with his contract to furnish a-cargo of horses for the second voyage of the steamer Portuguese Prince is by no means free from doubt, but the question as presented is one of law, and therefore within the jurisdiction of the Supreme Court, and we feel constrained to follow the general rule of this court and solve the doubt in favor of the judgment of the trial court.
We adhere to the conclusion stated in our main opinion that there is evidence sufficient to sustain the findings of the jury that appellants by the use of ordinary care could have obtained other cargoes in lieu of the horses which appellee Steger failed to furnish in accordance with his contract, and that the profits which appellant would have made from the transportation of the substituted cargoes would have equaled what it would have made if appellee Steger had furnished the cargoes of horses and appellant had transported them under its contract with him. The evidence as a whole upon this issue is contradictory and not satisfying, but we cannot say it does not raise the issue, and that is the only question presented by the assignments.
[6] Appellant’s contention in regard to the second voyage of the steamer Portuguese Prince is that the Miller Bros.’ horses having been transported under the contract made by Steger with Miller Bros., and for account of Steger, and he having expressly agreed to compensate appellant for any loss it might sustain by transporting the Miller Bros.’ horses in lieu of the horses which Steger had contracted to furnish for said voyage, the issue of whether appellant used ordinary care to avert or reduce the damages arising from Steger’s failure to comply with his contract was not raised by the evidence as to this second voyage of the Portuguese Prince, and that issue should not have been submitted to the jury. Counsel for appellant presents this contention with much force, but we think that, notwithstanding the facts that the Miller Bros.’ horses were transported by appellant under the contract made with them by Steger, and that Steger at one time promised to pay any loss sustained by appellant from the substitution of these horses for the cargo that Steger had contracted to furnish, the issue of whether appellant could have averted or reduced the damages by using ordinary care to obtain some other cargo was in the case, and was properly submitted to the jury. As stated in our main opinion, we think Steger’s testimony shows that his agreement to pay the damages that appellant might sustain by taking the Miller Bros.’ horses in lieu of the cargo that Steger had failed to furnish was made under the belief that if appellant accepted the Miller Bros.’ horses and transported them for his, Steger’s, account, and under his agreement to pay any loss it might sustain thereby, the steamer would still remain chartered for’the third voyage covered by 1;he contract of charter, and would return to Galveston and transport his horses on said voyage.
We think the evidence further shows that • appellant was not induced to take the Miller Bros.’ horses by Steger’s promise to pay this damage, but took them because that was the only cargo of horses available and it did not care to take any other kind of cargo. The testimony of appellant’s agent, Warriner, shows that the steamer was not held at Galveston for Millers Bros.’ horses at Steger’s request, nor because of any promise of Steger, and it is also shown that appellant made efforts to get other cargoes of horses after Steger’s offer of the Miller Bros.’ horses was made to it.
In these circumstances we do not think Steger, after appellant, as he expresses it, had taken the boats away from him, should be held estopped as a matter of law from showing, in defense of appellant’s claim for damages, that he offered appellant cargoes of hay which at the price he agreed to pay for its transportation would have netted appellant more than it could have made by *233transporting his horses,, or from showing that appellant by the exercise of ordinary care could have obtained other cargoes at a rate for transportation which would have been just as profitable to appellant as the transportation of Steger’s horses.
In our main opinion we say:
“The contracts under which a large portion of these exports [referring to exports of cotton and other articles of commerce exported from Galveston in February and March, 1915] were shipped were made while the two ships of appellant before named were at Galveston and had found that Steger was unable to comply with his contract to furnish the cargoes of horses.”
Appellant complains of this statement on the ground that it is not supported by the testimony of any witness. Upon a re-examination of the record we find that' no witness testified that a large portion of the exports during the months named were shipped un-, der contracts made during said months. All that is shown by the testimony is that contracts were made by ship brokers with various persons for shipments of said exports which moved during said months. The witness who testified as to these shipments stated that he could not tell how many of them moved in the months of February and March, but he could obtain that information from his books, and stated that he w.ould produce it. The record does not show that the witness produced his books or the promised information. We correct our former statement as above indicated in response to appellant’s complaint, and not because we regard our first statement as materially inaccurate.
[7] Appellant insists in its motion that we erred in not sustaining its assignment predicating error upon the refusal of the trial court to instruct the jury that the burden of proof was upon the defendant upon the issue of whether the plaintiff could have averted or reduced the damages by the use of ordinary care. In support of this contention appellant cites a number of cases, announcing the long-established rule that, such plea being an affirmative defense, the burden of proving it was upon the defendant. This rule is unquestionably sound in reason and universally sustained by the authorities, but this does not determine the question of whether the court committed error in not so instructing the jury. The charge given by the court submitted to the jury the question of whether the plaintiff could have, by the use of ordinary care to obtain the cargoes, averted or reduced the damages occasioned by the failure of the defendant to furnish the cargo he had contracted to furnish. It .was proper to instruct the jury that they should determine this question in accordance with the preponderance of the evidence, but it was wholly unnecessary to tell them where the burden of proof lay. On the contrary, it has been expressly held by our Supreme Court that a charge upon the burden of proof is not always necessary or proper. Blum v. Strong, 71 Tex. 321, 6 S. W. 167. We cannot see what possible assistance it could have been to the jury in this case in determining the issues presented to them to have been told where the burden of proof rested, and appellant could not possibly have been harmed by the failure of the court to give such instruction. We think the learned counsel for appellant has confused the question of burden of proof with that of the preponderance of-the evidence.
[8, 9] Appellant also complains of the construction placed in our. main opinion upon assignments Nos. 10 and 11. We say in that opinion that these assignments “complain of the verdict and judgment in favor of Steger for $24,000 on his cross-action for damages for the failure of appellant to comply with its contract for the shipment of hay,” and then say in effect that, the trial court having required a remittitur of that judgment, it is unnecessary to discuss these assignments. These assignments are as follows:
“Tenth Assignment of Error — A Proposition.
“The verdict and judgment against the plaintiff, and the verdict, in favor of the defendant Steger for $24,000, are contrary to the evidence, and are not supported by the evidence, and are not supported by the preponderance of the evidence, nor warranted by the evidence, because the evidence overwhelmingly reveals the facts and establishes the facts that the plaintiff performed all its obligations arising under the charter parties in full, and the defendant Steger breached his obligations arising thereunder by failure to provide horses when required so to do by the contract, and by failure to furnish the bankers’ guaranty, or the substituted security therefor, by failure to pay the daily de-murrage due under the contracts, and that the-plaintiff exercised all the care to avert and reduce damage arising from Steger’s breach of his contracts that a person of ordinary care would have done under the circumstances.
“Eleventh Assignment of Error — A Proposition.
“The verdict and judgment against the plaintiff, and the verdict in favor of the defendant Steger for $24,000, are contrary to the evidence, and are not supported by the evidence, and not supported by the preponderance of the evidence, and not warranted by the evidence, because the evidence overwhelmingly reveals the facts and establishes the facts that plaintiff could not have saved all loss and damage by the exercise of ordinary care in obtaining cargoes for either of the two voyages involved, the only offers of cargo revealed by the evidence being grain and hay of the defendant Steger, under these issues being bound to produce testimony sufficient to overcome the burden of proof cast upon him on the issue of due care and diligence on the part of the plaintiff to reduce or avert damage from Steger’s breach of contracts. The evidence consisted only of general testimony that merchandise was passing through the port of Galveston, and the testimony on behalf of the plaintiff be *234ing overwhelmingly that all loss and damage could not have been avoided by the exercise of ordinary care on the part of the plaintiff in obtaining cargo for the last two voyages of the Portuguese Prince and the last voyage of the Burmese Prince.”
Appellant contends that these assignments assail the verdict and judgment against plaintiff on the whole case, and the verdict in favor of Steger for $24,000, and cannot be properly construed as only attacking the verdict and judgment against plaintiff and in favor of Steger on the cross-action for $24,000.
The assignments are susceptible of the construction appellant places upon them, and we will accept that construction and withdraw our former holding that they only refer to the verdict and judgment for $24,000.
For the statements under these assignments appellant copies portions of the court’s charge, and then refers to the evidence set out on preceding pages 24 to 132 of its •brief. A great deal of this evidence, which covers 108 pages of appellant’s printed brief, has no bearing upon the issues presented by these assignments. We think it clear that rule 31 for the Courts of Civil Appeals (142 S. W. xiii) does not sanction a statement of this kind, and the assignments are not entitled to consideration because of the insufficiency of their supporting statements. However, the sufficiency of the evidence to sustain the verdict of the jury upon the issue of the exercise by the appellant of ordinary care to avert or reduce the damages has been passed upon under preceding assignments, and if these assignments could be considered they should be overruled.
Other assignments'questioning the findings of the jury upon issues raised as to the alleged contract between Steger and appellant for the transportation of hay were not discussed in the main opinion, and will not be here discussed, because Steger’s claim for $24,000 damages for the alleged breach by the appellant of a contract for the transportation of his hay having been eliminated by the remittitur filed by him, the question of whether a binding contract was made by appellant for the transportation of the hay is immaterial.
Upon the issue of ordinary care on the part of appellant to avert or reduce the damages, it was only necessary for Steger to show that by the use of such care it could have obtained substitute cargoes, the transportation of which would have yielded it sufficient profit to offset the loss sustained by th.e failure of appellee Steger to furnish his cargoes of horses. We think the evidence sé't out in our main opinion is sufficient to sustain a finding that appellant could have done this by taking the hay which was offered it by Steger, and the question of whether it bound itself by contract to take the hay cannot be material upon this issue.
Any assignment not discussed in this or our main opinion has been duly considered and overruled.
We are of opinion that the motion for rehearing should be refused; and it has been so ordered.
Refused.