ROSS, Circuit Judge
(after stating the facts as above). [1] It is manifest that if the special issue in response to which the special verdict was returnéd was supported by sufficient evidence, and there was no substantial error in the admission or rejection of evidence bearing on it, and the jury was not wrongly instructed in respect to that question, the judgment must be affirmed.
The record shows that the plaintiff in error requested the court to instruct the jury, among other things, as follows;
“In relation to the affirmative questions set up by the defendant, I advise you that they are as follows: (1) That the draft in question .was placed by Olarkson & Co. with the plaintiff. In this connection I charge you that there is no evidence on the part of the defendant that this draft was so paid, either in whole or in part, and therefore this affirmative defense of the defendant must be disregarded by you. * * * ”
The court refused to give the instruction, and submitted the issue to the jury, to which action the plaintiff reserved an exception, and its ■ counsel here insist that “there is no evidence whatever that the draft was paid.”
The record shows that the plaintiff in error’s Port Arthur branch , caused the draft to be protested, and the plaintiff introduced other evidence tending to show that it was not paid, but it is a mistake to say, [651]*651as does counsel for the plaintiff in error, that there is no evidence to the contrary. We find in the evidence of the defendant’s witnesses Davidson and Short, and in that of Clarkson, as well as in the circumstances of the case, much evidence upon which the special verdict might well have been based. The record shows that there had been many other similar drafts, accompanied by similar documents, sent by the Seattle bank to the Port Arthur bank for flour sold by the Centennial Mill Company, and that the plaintiff bank was familiar with the business of Clarkson & Co., and indeed was mainly instrumental in the establishment of that firm at Port Arthur. Clarkson & Co. also had a place of business at Vladivostok, where its main office was; Davidson during most of the times in question being its manager at Port Arthur, and Short its assistant manager there, a Mr. Ofsianlcin being during all of the times in question the mahager of the plaintiff bank at Port Arthur, and subsequently, and at the time of the taking of the testimony in this case, being the manager of the Vladivostok branch of the plaintiff in error. The record shows that Clarkson & Co. were the agents of the steamship company that carried the flour in question from Seattle to Port Arthur, and were also importers, merchants, and insurance agents, and had one of the three warehouses at Port Arthur, all of which facts were well known to the Port Arthur bank. The flour in question was carried to Port Arthur by the ship Ilyades, which reached there about the middle of January, 1904. The evidence also shows that Clarkson & Co. were large customers of the bank. The succeeding ship of the steamship company, also carrying-flour among other things, reached Pori Arthur about the 7th of February, 1904. Short testified, among other things, that when the Ily-ades arrived with the 35,312 quarter sacks of flour in question, there were but from 6,000 to 8,000 sacks in Clarkson & Co.’s warehouse, and that -when that shipment arrived he went to the Port Arthur bank on behalf of Clarkson & Co. to accept the draft drawn for the purchase price of it, and did so; lhat when he accepted the draft Mr. Ofsiankin, on behalf of the bank, authorized Clarkson & Co. to take immediate possession of the flour and sell it, and that he (Short) on behalf of that firm gave the bank what he designates as a “letter of guaranty,” and what Davidson in his deposition designates as one of “hy-pothecation,” recognizing the flour as the property of the bank until paid for, and agreeing to pay over to the bank the proceeds thereof until full payment was made; that the letter was “the regular form of bank guaranty; it was a printed form,” said the witness. And both Short and Davidson testified that what was done in the matter of the shipment here in question was in accordance with a long-established custom between the Port Arthur bank and Clarkson & Co.; Short testifying that:
“From the year 1900 the same rule existed. We always gave the bank a letter of guaranty against — a letter of guaranty to take delivery of the cargo, and the cargo belonged to them until it was paid for, and we sold it out and deposited the money in the hank from time to time as Clarkson & Co. got it in.”
Davidson in his deposition corroborates the testimony of Short in that regard, and it is a most significant circumstance that, although it [652]*652appears from the evidence that, during the times it was being taken Mr. Ofsiankin was the manager of the plaintiff in error’s bank at Vladivostok, he was not called to contradict the testimony of Short and Davidson; nor did the plaintiff in error produce the written agreement between the parties, delivered to the bank, according to the testimony of those witnesses, nor in any way account for it. Short testified that upon the acceptance by Clarkson & Co. of the draft in question, and the delivery by that firm to the Port Arthur bank of the documents mentioned, Clarkson & Co. took possession of the 35,312 quarter sacks of flour, and that they thereupon commenced selling it, and paying into the bank the proceeds thereof, is a fair inference from his testimony, as well as that of Davidson.
It appears from the latter’s testimony that by reason of orders of the Russian military authorities he was compelled to leave Port Arthur, and did so on the 17th of February, 1904. Being asked on his direct examination when the last shipment of flour from the Centennial Mill Company to Clarkson & Co. arrived at Port Arthur, he answered that it arrived there about the 8th of February, 1904, but that he could not state positively, as he was not there at the time, and, being asked on what steamer that flour arrived at Port Arthur, answered, “On one of the steamers operated by the Boston Steamship Company or the Boston Towboat Company, either the Hyades or the Plei-ades sind, being asked as to the quantity of flour that arrived by the steamer so referred to by him, answered, “Between 35,000 and 40,000 sacks.” In his subsequent testimony on both direct and cross examination the witness was evidently quite confident that the steamer that brought that flour was the Pleiades, but the flour itself, the witness distinctly testified, was sold by him before leaving Port Arthur to the firm of Ginsburg & Co., which he testified was a large Russian firm doing an extensive business with the Port Arthur bank, and with its principal place of business at that place, and which sale he testified he had to make in order to protect Clarkson & Co. against tire war conditions then prevailing. His testimony is, in part, that he arranged with Ginsburg & Co. to pay a part of the money for which he sold the flour into the Port Arthur bank, and to taleé a draft from that company on Shanghai in his favor, which he intended to pay into Clarkson & Co.’s branch at that place, and that he took the head of the firm, Ginsburg, to the Port Arthur bank, and explained to the manager of that bank the terms of the sale, to which he agreed.
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ROSS, Circuit Judge
(after stating the facts as above). [1] It is manifest that if the special issue in response to which the special verdict was returnéd was supported by sufficient evidence, and there was no substantial error in the admission or rejection of evidence bearing on it, and the jury was not wrongly instructed in respect to that question, the judgment must be affirmed.
The record shows that the plaintiff in error requested the court to instruct the jury, among other things, as follows;
“In relation to the affirmative questions set up by the defendant, I advise you that they are as follows: (1) That the draft in question .was placed by Olarkson & Co. with the plaintiff. In this connection I charge you that there is no evidence on the part of the defendant that this draft was so paid, either in whole or in part, and therefore this affirmative defense of the defendant must be disregarded by you. * * * ”
The court refused to give the instruction, and submitted the issue to the jury, to which action the plaintiff reserved an exception, and its ■ counsel here insist that “there is no evidence whatever that the draft was paid.”
The record shows that the plaintiff in error’s Port Arthur branch , caused the draft to be protested, and the plaintiff introduced other evidence tending to show that it was not paid, but it is a mistake to say, [651]*651as does counsel for the plaintiff in error, that there is no evidence to the contrary. We find in the evidence of the defendant’s witnesses Davidson and Short, and in that of Clarkson, as well as in the circumstances of the case, much evidence upon which the special verdict might well have been based. The record shows that there had been many other similar drafts, accompanied by similar documents, sent by the Seattle bank to the Port Arthur bank for flour sold by the Centennial Mill Company, and that the plaintiff bank was familiar with the business of Clarkson & Co., and indeed was mainly instrumental in the establishment of that firm at Port Arthur. Clarkson & Co. also had a place of business at Vladivostok, where its main office was; Davidson during most of the times in question being its manager at Port Arthur, and Short its assistant manager there, a Mr. Ofsianlcin being during all of the times in question the mahager of the plaintiff bank at Port Arthur, and subsequently, and at the time of the taking of the testimony in this case, being the manager of the Vladivostok branch of the plaintiff in error. The record shows that Clarkson & Co. were the agents of the steamship company that carried the flour in question from Seattle to Port Arthur, and were also importers, merchants, and insurance agents, and had one of the three warehouses at Port Arthur, all of which facts were well known to the Port Arthur bank. The flour in question was carried to Port Arthur by the ship Ilyades, which reached there about the middle of January, 1904. The evidence also shows that Clarkson & Co. were large customers of the bank. The succeeding ship of the steamship company, also carrying-flour among other things, reached Pori Arthur about the 7th of February, 1904. Short testified, among other things, that when the Ily-ades arrived with the 35,312 quarter sacks of flour in question, there were but from 6,000 to 8,000 sacks in Clarkson & Co.’s warehouse, and that -when that shipment arrived he went to the Port Arthur bank on behalf of Clarkson & Co. to accept the draft drawn for the purchase price of it, and did so; lhat when he accepted the draft Mr. Ofsiankin, on behalf of the bank, authorized Clarkson & Co. to take immediate possession of the flour and sell it, and that he (Short) on behalf of that firm gave the bank what he designates as a “letter of guaranty,” and what Davidson in his deposition designates as one of “hy-pothecation,” recognizing the flour as the property of the bank until paid for, and agreeing to pay over to the bank the proceeds thereof until full payment was made; that the letter was “the regular form of bank guaranty; it was a printed form,” said the witness. And both Short and Davidson testified that what was done in the matter of the shipment here in question was in accordance with a long-established custom between the Port Arthur bank and Clarkson & Co.; Short testifying that:
“From the year 1900 the same rule existed. We always gave the bank a letter of guaranty against — a letter of guaranty to take delivery of the cargo, and the cargo belonged to them until it was paid for, and we sold it out and deposited the money in the hank from time to time as Clarkson & Co. got it in.”
Davidson in his deposition corroborates the testimony of Short in that regard, and it is a most significant circumstance that, although it [652]*652appears from the evidence that, during the times it was being taken Mr. Ofsiankin was the manager of the plaintiff in error’s bank at Vladivostok, he was not called to contradict the testimony of Short and Davidson; nor did the plaintiff in error produce the written agreement between the parties, delivered to the bank, according to the testimony of those witnesses, nor in any way account for it. Short testified that upon the acceptance by Clarkson & Co. of the draft in question, and the delivery by that firm to the Port Arthur bank of the documents mentioned, Clarkson & Co. took possession of the 35,312 quarter sacks of flour, and that they thereupon commenced selling it, and paying into the bank the proceeds thereof, is a fair inference from his testimony, as well as that of Davidson.
It appears from the latter’s testimony that by reason of orders of the Russian military authorities he was compelled to leave Port Arthur, and did so on the 17th of February, 1904. Being asked on his direct examination when the last shipment of flour from the Centennial Mill Company to Clarkson & Co. arrived at Port Arthur, he answered that it arrived there about the 8th of February, 1904, but that he could not state positively, as he was not there at the time, and, being asked on what steamer that flour arrived at Port Arthur, answered, “On one of the steamers operated by the Boston Steamship Company or the Boston Towboat Company, either the Hyades or the Plei-ades sind, being asked as to the quantity of flour that arrived by the steamer so referred to by him, answered, “Between 35,000 and 40,000 sacks.” In his subsequent testimony on both direct and cross examination the witness was evidently quite confident that the steamer that brought that flour was the Pleiades, but the flour itself, the witness distinctly testified, was sold by him before leaving Port Arthur to the firm of Ginsburg & Co., which he testified was a large Russian firm doing an extensive business with the Port Arthur bank, and with its principal place of business at that place, and which sale he testified he had to make in order to protect Clarkson & Co. against tire war conditions then prevailing. His testimony is, in part, that he arranged with Ginsburg & Co. to pay a part of the money for which he sold the flour into the Port Arthur bank, and to taleé a draft from that company on Shanghai in his favor, which he intended to pay into Clarkson & Co.’s branch at that place, and that he took the head of the firm, Ginsburg, to the Port Arthur bank, and explained to the manager of that bank the terms of the sale, to which he agreed.
Short testified that the Pleiades arrived at Port Arthur about the 7th of February, and that he himself left there on board of that vessel, and that not more than 1,500 or 2,000 sacks of flour were landed at Port Arthur from that ship, so that the jury might well have concluded that the 35,000 or 40,000 sacks of flour which Davidson thought were brought by the Pleiades was the consignment of flour that the Hyades carried to that port a few weeks before. As a matter of course that, and all other inconsistencies in the testimony of the various witnesses, as well ás their veracity, were matters for the determination of the jury, in the light of all of the facts and circumstances of the case. Moreover, there was testimony tending to show that [653]*653from the 1st of January, 1904, to November 23d of the same year, Clarkson'& Co. paid into the Fort Arthur bank 126,928 rubles and 97 kopeks.
'We are of opinion that we would not be justified in holding that there was no evidence to sustain the special finding of the jury to the effect that the amount of the draft in question was paid to the Port Arthur bank.
[2] We are also of opinion that upon the issue of payment proof as to the course of dealing between the Port Arthur hank and Clarkson & Co., with respect to similar previous drafts between the same parties, was competent, and therefore that there was no error in the ruling of the trial court in respect to the admission of .such testimony; and, finding no error in the instructions of the court upon the question of payment, the judgment must be affirmed, regardless of other questions elaborately and ably argued by counsel for the plaintiff in error, since they are immaterial in view of the special verdict.
The judgment is affirmed.