The opinion of the court was delivered by

This was an action to recover damages for the breach of a contract alleged to have been made between the parties, whereby the defendant company undertook to transport a lot of cattle from White Oak, a station on defendant’s road, about forty miles above Columbia, to Savannah, in the State of Georgia; and the only controversy, so far as the terms of the contract were concerned, seems to have been as to the route by which such shipment was to be made. The plaintiff claimed that the contract required the cattle to be shipped via the South Bound Railroad, having its northern terminus at the city of Columbia, while the defendant insisted that the contract was to ship the cattle via Augusta, in thé State of Georgia. The cattle were in fact shipped by the latter route, and reached Savannah about twenty-four hours later than they would have done if shipped by the way of the South Bound Railroad; and the plaintiff claims damages for the delay occasioned by reason of the breach of the contract, -as set up by him.

There was no evidence in writing as to what route the real contract between the parties required the shipment tobe made by, and the parol evidence was directly conflicting as to that point; and the jury were instructed that they must determine from the conflicting evidence what was the real contract between the parties, and, if they found that the contract was to make the shipment via Augusta, the plaintiff was not entitled to recover any damages at all, unless they also found that there was some unreasonable delay in transporting the cattle by the Augusta route. If, however, they should find that the real contract was to make the shipment via the South Bound Railroad, then the plaintiff would be entitled to recover such damages as resulted from the twenty-four hours delay in reaching the point of destination, and the jury were instructed as to the measure of damages in such case. The jury found a verdict in favor of the defendant, and the plaintiff appeals upon the several grounds set out in the record.

*3101 *309It is very manifest that the first and controlling question in the case was as to what route the contract required the shipment to be made by; and this being a question of fact *310(there being no written evidence of the contract), the verdict of the jury must be regarded as conclusive. Under the instructions given to the jury, they must necessarily have found that the contract required the shipment to be made via Augusta, for otherwise they would have been compelled to find some damages in favor of the plaintiff; and as there was no evidence of any delay in the transportation of the cattle by the Augusta route, the result necessarily was, just as we find it to be, a verdict in favor of the defendant.

2 In an action to recover damages for the breach of a contract, the first inquiry necessarily is, what was the contract, and whether there has been any breach of it? and until this has been determined, no question as to the amount or the measure of damages can possibly arise. Devereux v. Champion Cotton Press Company, 17 S. C., 66. Where, therefore, as in this case, the first and controlling inquiry has been determined in favor of the defendant, as we have seen, no inquiry as to the damages can arise; and hence the several grounds of appeal, in which error is imputed to the Circuit Judge in his instructions to the jury as to the measure of damages, need not be considered; for even if error should be found therein (which we neither affirm nor deny), such supposed error cannot possibly affect the result. The same remark may be made in reference to so much of the charge as is excepted to, because of its supposed invasion of the province of the jury in relation to questions of fact; for that portion of the charge relates to the matter of damages, an inquiry which never was reached, by reason of the findings of the jury upon the first question.

3 The fifth ground of appeal imputes error to the Circuit Judge “in allowing defendant to introduce in evidence a blank form of a contract, called a released contract, without showing that the said form of contract had any connection with, or bearing upon, the issues of this case.” At the most, the testimony here objected to was irrelevant, and the rule is well settled that the introduction of such testimony is largely subject to the discretion of the Circuit Judge. Besides, the “Case” shows that this paper was received mainly for the purpose of explaining more fully the meaning of a released *311contract, as to which the plaintiff had been permitted, without objection, to speak of in his cross-examination. We do not, therefore, see any such error in receiving this paper in evidence, as would warrant the granting of a new trial.

4 It only remains to consider the several exceptions to the charge of the Circuit Judge, imputing error in the charge in reference to the waybill. We think it is a mistake to suppose that the judge charged that the waybill was the contract between the shipper and the carrier His language cannot properly be considered as conveying any such idea to the jury. On the contrary, it seems to us that the jury were made .to understand that there was no contract in writing, “no bill of lading made out,” and all that was said, upon this point, was that the waybill was the only written memorandum made out at the time by the agent at White Oak, and this was exactly the fact. Indeed, if the judge had regarded the waybill as constituting the contract, there would have been, no question of fact to be referred to the jury, whereas the jury were distinctly instructed to inquire what was the contract between the parties, and their attention was called to the conflicting testimony as to that question, and the waybill was only referred to as one of the circumstances tending to show that the railroad agent, at least, understood that the shipment was to be made via Augusta, and it was so entered upon the waybill, which was seen by the plaintiff. We do not think that any of the exceptions as to this point can be sustained.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.