G. & S. Heilbroner v. J. M. Hancock, 33 Tex. 714

Walker, J. This was an action commenced on the fourth day of July, 1867, on a contract previously made between the parties for the hauling of goods from the town of Millican to the town of Sherman, in the State of Texas; by which contract it appears to have been stipulated that Hancock, the appellee,, should proceed from. Sherman to Millican with three teams capable of hauling in the aggregate about 7000 pounds. The distance from Sherman to Millican is provén to be about two hundred and sixty miles, and the price to be paid for hauling was three dollars and sixty c.ents, specie, per hundred pounds.

The appellee proceeded with his teams to Millican, with an order from the appellant to his shipping merchant, which reads as follows ; “ Messrs. Haswell & Son—You will please load P. Hancock’s three mule teams at three dollars and sixty cents per hundred pounds. In case the large case should be at your house, you will please load it on his wagons, and then let him pick the heaviest freight. ££G. & S. HEILBRONER. t£If all our goods áre loaded, you will please load Mr. Hancock’s wagons with Messrs.

Hall & Chapman’s goods. ££ HEILBRONER.” On arriving at Millican, it appears there were no goods in the hands of Haswell & Son, either for G. & S. Heilbroner or Hall & Chapman. Haswell & Son, the shipping merchants, offered to furnish Hancock with other freight to be delivered at intermediate points, to Lancaster at two .dollars and seventy cents, currency, per hundred pounds, and to Kaufman county at three dollars per hundred pounds, currency.

It is claimed that Hancock did not proceed so directly to Millican as he was bound to do by the terms of his contract; but it does not appear that the delay was unreasonable; nor is it claimed that the goods were not received because of it. Hancock declined loading any other goods than those for which his order called, and brought his suit to recover the whole amount which he could have earned, under his contract. The defendants below demurred to the plaintiff’s original and amended petition, which demurrer was overruled by the court, and we think there was error in this ruling.

The action should have been brought for breach of the contract, and for the damages consequent to the breach, and not upon the contract to enforce specific performance. The allegata and probata must correspond. A plaintiff should not be allowed to set out one cause of action and prove another. No proof should be heard which does not correspond with the averments in the pleadings. (See Mims v. Mitchell, 1 Texas Reps., 443, and Carter et al. v. Wallace, 2 Texas Reps., 206.) We think there was error in refusing the first, second and third charges asked by the defendant below.

It was undoubtedly the duty of Hancock to have taken any other freights which were offered him to haul between the intermediate points of Millican and Sherman, and to have credited the appellants with whatever he might have received for hauling such freight; and whether he was or was not, in contemplation of law, a common carrier, makes no kind of difference.

Carrying freight was in the line of his business, and he owed it in good faith to the appellants to make what he could out of the trip within the line of his business, and without extraordinary trouble. (See 2 Greenleaf ’s Evidence, § 261 and the following note, and numerous authorities therein cited.) This case comes clearly within the principle cited, that where a merchant engages to furnish a given quantity of freight for a ship, for a particular voyage, and fails to do so, he must pay dead freight to the amount so agreed by him, deducting whatever may have been received from other persons for freight taken in lieu of that which the merchant had stipulated to furnish. (See Abbott on Ship., 4 Am.

Ed., 277, 278 and 442.) Under this rule it would be held bad faith in the master of the vessel if, being disappointed in the freight he expected to ship, he should refuse to take in other cargo for the port to which he expected' to sail, or intermediate ports, and thus endeavor to throw the whole loss of the disappointment on the merchant. Eor the reasons above given, the judgment of the district court is reversed and the cause remanded to be proceeded in in accordance with this opinion. Reversed and remanded.