¶1The damages sued fori flow from the alleged breach of two oral contracts; the first one being between plaintiff and defendants, as common carriers, to convey plaintiff’s freight and passengers on the steámerl Monarch, and the second to convey them on the steadier Oil I City. On careful examination of the complaint, it appears I that the only consideration paid, or agreed to be paid, by thel plaintiff is admitted to have been paid by him to the Oil City,I *557and none is shown to have been paid to or received by the defendants, and none is tendered or alleged to be due to them. Under the second or substituted contract plaintiff agreed to and did actually pay the whole consideration to the Oil City, not as the agent of defendants, but for the services of that boat in conveying the freight and passengers contracted for. It is my judgment that a fair construction of this complaint shows an abandonment of the first contract, and that the second and substituted contract was between the plaintiff and the Oil City; that the promise of the defendants was purely voluntary and without consideration, and will not support plaintiff’s suit for damages.
¶2No application to amend was made, and no amendment could be made which would state a cause of action against the defendants. Even if the action of the court in directing a verdict for defendants was error, it would not justify the court in granting a new trial upon the facts admitted by the complaint. Motion for a new trial denied.