(dissenting). After mature reconsideration of this cause on rehearing, I can see no escape for the appellee from liability for such loss and damage as appellant actually sustained upon the second voyage of the Portuguese Prince in carrying the Miller Bros.’ horses to Genoa, Italy. Indeed, under the case as made, it seems to me he clearly admitted himself to be so bound as to that shipment and left nothing touching his responsibility for it to go to the jury. Accordingly, I think the court below erred in submitting to them the issue as to whether appellant used ordinary care to avert or rdeuce the damage flowing from that trip, and that its assignments 1 and 4, attacking that action, should have been sustained. A brief consideration of such parts of the record as bear directly upon the matter will, it is thought, demonstrate the correctness of this view.
With the Portuguese Prince lying in the harbor at Galveston since February 7, 1915, and Steger for many days in default upon his contract to furnish horses for her second voyage, during which period both he, his agents, and those of appellant had unsuccessfully scoured the country for a substitute cargo, on March 3, 1915, an agreement concerning a cargo for that trip was reached between them, and evidenced by the following letter:
“Galveston, Texas, March 3, 1915.
“Messrs. D. & G. Warriner, Agents Prince Bine, Galveston, Texas — Gentlemen: This is to advise you that with telegraphic authority in hand and verbal instructions from Mr. E. I). Steger, we have this day relet for E. D. Steger account, the steamer Portuguese Prince with 1,187 head of horses for Genoa, at $80.00 per head, and will make an effort to secure a total of 1,200 head for this steamer; horses to be delivered in Galveston ready to load by March 12 (demurrage on and after that date at both Galveston and Geona to be at the rate of 150 B per day if steamer be detained at either port longer than forty-eight hours).
“Mr. Steger has advised us that he will be responsible for any additional damages or losses that might be proven by the Prince Bine in handling this line of horses to Italy in lieu of his inability to furnish horses as per original contract.
“Yours very truly,
“The J. H. W. Steele Company,
“Agents for E. D. Steger.
“Diet. Mr. Steele.”
Steger himself testified concerning this agreement:
*235“All the matters set out in the letter of March 3, 1915, to D. & G. Warriner from the J. H. W. Steele Company, agents for E. D. Steger, were matters of detail and were left entirely to Mr. Steele. Steele was my agent all the way through, and as my agent wrote the letter to agents of plaintiff, March 3, 1915, stating we had relet the Portuguese Prince to Miller Bros., and that I would be responsible for any additional damages or losses which might he proven by the plaintiff in handling this line of horses to Italy in lieu of my inability to furnish horses as per original contract. I made the charter party with Miller Bros. March 3, 1915, seven days after I made the verbal contract as to hay, February 24, 1915.”
Now, the only excuse offered anywhere in this controversy as to why the appellee should not stand by this arrangement he so pointedly admits his agents made for him with full authority was that he had been relieved of it by .the hay contract to which he refers in the last sentence of his quoted testimony. A hiatus appears there, however, in that he himself repeatedly says he did not make the Miller Bros, charter party until 7 days after making the verbal contract as to the hay, whereas the latter was repudiated by the boat owners and abandoned by him within 1 or 2 days after it had been agreed upon. That no possibility of inaccuracy may occur at this point, his own version of it is further quoted:
“The conference of February 24th was not followed up by making any record in black and white, and no confirmations were exchanged between us by telegraph or mail. On the contrary, I was almost immediately notified that it did not suit the Prince Line to convert the boat and carry hay. * * * I received that notice within a very few days — within a day or two, I got the information they would not carry the hay, and did not pursue it further. I had already engaged the boats and had them on my hands, and I was just hoping to put hay on if I could not get horses; and I did not have horses for this boat and wanted to load it. I didn’t tender the hay because almost immediately he (Warriner) notified me that his people would not permit the horse fittings to be taken out. He had not made me any promise to find out whether the Prince Line would permit the removal of the horse fittings. He assumed they would permit it, and I assumed that they would. I knew Mr. Warriner was not the principal in the contract; I understood he was acting as agent of the Prince Line.”
So that, under his own statement, the so-called hay contract, which had gone up in thin air at least 5 days before, could not have furnished a defense against the undertaking —subsidiary, of course, to his original contract for the Portuguese Prince — the appellee had assumed in his subletting of the boat to Miller Bros.; yet, in .submitting the issues of ordinary care upon appellant’s part as to the second trip of this vessel, the court permits the jury to regard this discarded hay contract as a complete defense to the claim for damages arising from this voyage also, along with those pertaining to the other two. There was no difference made in the way the hay defense was submitted between the Miller Bros.’ shipment and either of the other two voyages to which it was allowed to apply. The relevant parts of the charge, stripped of recitations immaterial to the question now under consideration and placed in what is considered appropriate sequence, were the following: In paragraph 4, after first saying it was appellee Steger’s duty to load the vessels with horses within 48 hours after they were tendered him for that purpose, and to furnish banker’s guaranty stipulated in the contract, that instruction com eludes:
“Not having done either of these things, he was in default as to the second voyage of the Portuguese Prince and the third voyage of the Burmese Prince, and became thereby liable for all damages proximately caused by such default, unless there was some subsequent agreement releasing him.”
Then succeed these general provisions:
“(5) But it was the duty of the plaintiff and its agents to do all that one of ordinary care could have done under the circumstances to prevent the damage altogether or to reduce it.”
“(7) The defendant Steger having breached his contract for the steamer Portuguese Prince as above stated on its second voyage, unless it was otherwise agreed between the parties as hereinafter submitted,” etc.
“(11) The defendant Steger claims that there was an agreement, between himself and the plaintiff through its agents, entirely releasing him from all damages on account of the failure to furnish horses or other breach of the charter parties, and that it consisted in his offer, on or about the 24th day of February, 1915, to them, in lieu of horses, of 24,000 tons of hay to be transported on the remaining three voyages of the vessels in question, 8,000 tons each trip, at the rate of $15 per ton, and their acceptance thereof.”
As applying the general principles thus laid down, these particular questions were asked:
“(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 Tes or No.”
“(6) 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 Xes or No.
“(7) If you answer interrogatory No. 6 ‘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 cargoes of hay at the price stated, and release the defendant from the charter parties? Answer Yes or No.
“(8) Were the cargoes of hay referred to in interrogatory 6 ever in fact tendered, that is, *236offered for loading, to the plaintiff or its agents? Answer Tes or No.”
“(11) 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.”
In other words, to state the net result and effect pf these instructions as affecting the second voyage of the Portuguese Prince (the Miller Bros’, shipment), the jury were told that Steger was in default, and consequently liable for all damages caused thereby, unless they found that the hay agreement of February 24th, as particularized in succeeding paragraph 11, had been made between the parties, in which event he was entirely released. And the jury in responding found that very thing when they answered question No. 1 “No,” and 6, 7, 8, and 11 “Yes.” That these proceedings were in the very face of Steger’s letter of March 3d of the undisputed testimony of all the witnesses, and of his own previously quoted admission concerning the outcome of the hay offer with reference to the Miller Bros’, transaction does not admit of a single, doubt; neither will it do to say that appellant did not both plead and prove the Miller Bros’, subcontract and full performance thereof in every detail, because in paragraph 6 of its second amended petition, and again in paragraph 4 of the second supplemental petition, it was alleged with much detail that at Steger’s request, for his use and benefit, and solely by .way of minimizing the damages then already due it from him, appellant moved the cargo of horses he had contracted with Miller Bros, for, earned for him $90,000 thereon, and applied it to his credit. Under these allegations, the court below, without objection from anyone, admitted in evidence Steger’s above-copied letter of March 3, 1915, promising to p'ay all loss and damages flowing therefrom if the Prince Line would recognize his subcharter party with Miller Bros., the subcharter contract itself, and uncontroverted proof that appellant fully performed it by transporting the horses as therein provided for.
And this undisputed, indeed frankly conceded, fact, that it did actually carry the Miller Bros.’ horses, under, pursuant to and in compliance with the letter of March 3d as modifying for that trip the general contract for the three voyages of the Portuguese Prince —which, of course, was still subsisting in full force and effect — it seems to me, rendered wholly immaterial the matter of whether or not, up to that time, this vessel had been held in Galveston Harbor at Steger’s request. For this reason I am unable to concur in the answer made in the majority opinions to appellant’s first assignment, wherein it is said the contention there made rests upon the claim that the boat was held at Steger’s request, when the evidence disclosed the contrary, part of Mr: Warriner’s testimony being quoted to so demonstrate. This answering position is amplified in the opinion on rehearing, where it is stated that Steger’s testimony showed his agreement to pay the damages appellant might sustain by taking the Miller Bros.’ horses to have been made under the belief that “the steamer would still remain chartered for the third voyage covered by the contract of charter, and would return to Galveston and transport his horses on said voyage.” An examination of the assignment referred to will disclose, however, that it was not grounded solely on the mere matter of the steamer’s having been held at Ste-ger’s request or not — even if Mr. Warriner’s statement as a whole shows it was not— but urged the error of the court in submitting at all the issue of ordinary care as to this second voyage of that vessel, the Portuguese Prince, upon the ground that the practically undisputed evidence demonstrated that such care had been used, and that Ste-ger had so solemnly bound himself to relieve appellant of all loss thereon as to preclude him from complaining, or from claiming any lack of such care as to that trip, it therefore does not meet the issue raised by the first assignment to say, as the majority do, that “the undisputed evidence shows that the ship was not kept at Galveston at Steger’s request.’-’
But is this court justified in making the finding just quoted from the fact that Mr. Warriner in one part of his evidence so stated? I think not, because he further testified as follows:
“The contract with Miller Bros, is dated March 3d. The vessel was held there after'that date, awaiting horses from Miller Bros., the horses we expected to be furnished under the contract between Steger and Miller Bros. The vessel was fixed to load horses for Miller Bros, at Galveston. When the time approached for loading, the horses were not forthcoming. Mr. Steele did all the telegraphing and informed me that there was some trouble had developed with the Texas quarantine law under which they would not be allowed to bring the horses through Texas from Oklahoma, and so it became necessary to load the horses from New Orleans.”
Moreover, Steger himself corroborated these last statements of Warriner by repeatedly testifying:
“I wanted the boats held at all times. * * * I repeat that, without seeing the telegram, I could not tell about dates, but that it was my wish always that the boats be held. I communicated that fact to Mr. Steele — always. I knew of the quarantine in the way of shipping the Miller Bros.’ horses, and other things; and 1 tried to help, myself, with the state authorities to get them to haul the horses, let them come through Texas, and did not succeed. * * * 1 was reasonably well advised about the movement of the Miller Bros.’ horses. I made no protest with reference thereto.”
*237So that the evidence of Mr. Warriner quoted by the court that he did not “hold the boat here at anybody’s request” must be read as. qualified by Mr. Warriner himself, and by the other undisputed evidence, this time including even Steger’s, that the Portuguese Prince was in fact held after March 3, 1915, for. Steger’s benefit and to fulfill his contract with Miller Bros. That is necessarily what Mr. Warriner means when his two apparently inconsistent statements are considered together. If, then, Steger secured that action from appellant; can he yet say, despite the express terms of the agreement contained in his letter, that it was negligent before that in holding the vessel at Galveston? . At any rate, if he could say so, he does not; he says under oafh:
“I am not complaining of the Prince Line moving the Miller Bros.’ horses. I wanted the boats held all the time. I am complaining that they took the boats away too quick.”
And if he is not complaining, if he wanted this boat held all the time, what legal difference can it make whether appellant held it there at his request or not? The fact remains that it was held;. that he used it in carrying out his contract with the Millers in precise accord with his written agreement with appellant. It does seem to me that the legal effect of all this evidence was such as to place the Miller Bros.’ shipment entirely without the pale of the hay defense, and in that instance, at least, to preclude the appel-lee from availing himself of it; it was demonstrably aftermath, if not confessedly afterthought. Walker v. Erwin, 47 Tex Civ. App. 637, 106 S. W. 164; Express Co. v. Taylor, 156 S. W. 617.
Furthermore, if there is a syllable of evidence anywhere in this record justifying any belief upon appellee’s part, which the majority upon rehearing say his testimony shows, that as a result of his assuming full responsibility for the Miller Bros.’ shipment the Portuguese Prince would return to Galveston and transport his own horses on her third voyage, it has evaded a diligent search, no representative of appellant so assured, agreed with, or had him to believe, as he himself says in the testimony already quoted:
“I had already engaged the boats and had them on my hands, and I was just hoping to put hay on if I could not get horses; and I did not have horses for this boat and wanted to load it.”
In other words, his original contract for all three voyages of that boat was still intact, and his intermediate and subsidiary undertaking to pay any losses upon the Miller Bros.’ cargo had nothing whatever to do with its remaining so. In all these circumstances, not being in any manner induced by the opposite party, his belief was not only without justification, but wholly immaterial. Being in admitted default upon his still subsisting original contract for three voyages, with the vessel knocking at his gates for a cargo of horses he did not have for only her second one, he simply crossed this one intermediate bridge when he came to it, and closed all issues of liability as to that trip by his letter of .March 3d. The trial court should have so held.
It is conceivable that the hay transaction might be held not to have been established with sufficient definiteness, considering the fact that it was pleaded as an unconditional contract, to form the basis of damages in Steger’s favor, and yet, though falling short of becoming a mutually binding obligation, be made to serve as a defense to appellant’s claims for damages growing out of other voyages than that for Miller Bros. This for the reason that a proper offer of the hay for those trips, all other essentials concurring, without an actual agreement to accept it, might relieve Steger from the consequences of his inability to furnish cargoes of horses for them, upon proof that the hay would have been a more profitable one. In my view, unless a distinction could so be made between the hay arrangement as a contract and as a mere showing that loss could have been averted, the trial court’s action in requiring a remittitur of the $24,000 recovered by Steger, and yet allowing the judgment against appellant to stand would be' illogical and inconsistent. But, to reiterate what has before been said, what I cannot understand is how, under the undisputed proof and the appellee’s own contracts and admissions, this hay defense can be extended to cover the Miller Bros.’ shipment also. While doubt, like a brooding presence, hovers over the entire case, there is none with me as to that feature of it; resolving all others in favor of the judgment, that I cannot yield.
I think the motion should be granted and the judgment reversed as to the claim for. damages on the Miller Bros.’ shipment, and remanded with instructions to the trial court to determine the amount of loss and damage suffered by appellant in that, respect, and then to enter judgment in its favor therefor, together with costs.