Page:Federal Reporter, 1st Series, Volume 7.djvu/89

Rh Portland. *.

You will determine; upon all the testimony in the case, whether the alleged increase of business and accumulation of export freight was sudden, unlooked for, and extraordinary, and occurring after the contract with the plaintiffs was made, or whether it existed at the time the defendant took the flour for transportation, or could have been, under all the then-existing circumstances,, reasonably anticipated and expected. Testimony has also been given of the efforts made by the defendant to obtain steamers to carry this flour, and in this connection I should I should say to you that the mere fact that the defendant could not get steamers, sooner than it did, would not relieve it from liability for delay unless such inability was solely attributable to such overpressure of freight as, within the instructions I have given you, would excuse the "delay. To aid you in passing upon the questions involved, you have by the stipulation in evidence, as I have before stated; the dates when the flour was delivered to the defendant in Milwaukee and when the shipment on the steamer's of the Transit line began; the dates of arrival in Portland of delivery to steam-ships at that port, and of the sailing of the steam-ships, and of arrival in London, and other facts agreed upon in the stipulation of which I have already spoken and upon all the evidence, you will say whether this Hour was delivered in London within a reasonable time after its delivery to the de fendant, "and, if it was not, whether the delay is excusable within the principles of law which I have stated. If the flotur was delivered within a reasonable time under the circumstances of the case, or if it was not, and the delay was excusable within the principles the court has laid down, then the defendant is entitled to a verdict. If, on the other hand, the flour was not delivered in London' within' a reasonable time after the defendant took it for transportation, and if the delay was not solely caused by facts and circumstances which make it excusable within the principles of law stated, then the plaintiffs ought to recover. * * * If you should find the plaintiffs entitled to a verdict, the measure of damages would be the difference between the market value of the flour which