Page:Federal Reporter, 1st Series, Volume 7.djvu/87

 HEliLIWELL tf. OBAND Ti^trNK Bi. OP CANADA. . t^ �portiug aiiy oi Ihe flour'toPortlantl, or in fotwarding it from that point, -which un'der ordiiiary circumstaride* would miake the defendant liable, it is claiiliefd in its' behalf tTiat it was excusable delay, and tHat the defeidatit ougHt not to be held answera'ble tHerefor. - ' ' ' �There is testiiuony tending td show that there was, at that time, a;n extraordinary press'of'foreign export'trafficViind sacK anaecnmuiatioiiat Portland of'freight ho and for foreign ports as rendered it, as it is claiiii^dj impossible to provide immediate oceaii transportiation. Upon ttis question; iind" ae' to -wnen or under •vfhat cireumstances an overpressure of freight wili excuse delay, I instnici'yoa'that if, after the defendant took this flodr for shipnitent, and after the ^erfonhance of the con- tract to caifiy was begun, there occurf ed, without fault of the defendatit, an extraordinairy and unforeseeh influi'upon the defendant's lines of flreight for forei^ export, and thai the deftindant Was theireby tiniekpectedly iiicapacitated fbr forward- ing the aobt Wiih lisudl diepatcb^ andHhat the delay of the flotir -was wholiy ocbiaoioned by'sach tinusilal and unexpected pressure of freight; and ndt in any degree by negligence of th« defendant, theh; and 'ahder sUch'circUm^iEnces,' tEe de- fendant TFOuidi ilbt'be reaj)briefible 'for' atich delay so tiec'a- sioned. It Would; faowever, be the duty bf tHei defendaiit, ih such- a state Of the case, to fb^\i^ard the flouir prbmpey afteir' the causes of such exousable aetay Vete rembved. Ptitting the' proposition in substantiallj^he fbrni ei one of the instruc- tions •whieh I am asked' tb giVe ^ou i ' ii, at the tirtte of liiafli- ing the eontlraixit ivith the' pltiirititt^ for the tifansportatioii bf this flbtir, the idef eridkiit had no doubla arid if tiie coaditibri 'bf business '/on itslinesgave it'iib gfouiids foi: doubtiiig, ^hat suitable nieans "wbtiid b'o y,t its |'cbinmand within the usual and bfdinary tiihe for bdnveying' the floTir frbiot Portland tb Londbil/ and' 'if 'all reasbritible 'efforts weVe BeaSbnaKl^'eiii- ployee' by the'-defendairf to' bbtaih'yach tuesins, and the' alleged delay was solely oecasioned by an extraoidiiary ati'd anusital itiflttx'bf freight ti^ou' fts Ktiei fbi' foreign exjjbrt, ariaiiig Siib&e^ueti'lily'tia''ihe^ii^atiiig bf'the'dbntriact ivith-Hh©- ��� �