Page:Federal Reporter, 1st Series, Volume 9.djvu/85

70 FEDERAL EKPOBTEB. �The counsel have suggested some instructions, gentlemen, which I, probably, have anticipated in part, but I will refer to them. And first, on behalf of the plaintiff, I was asked to say to you as follows: �"The jury is instructed that the words, 'as soon as possible,' uscd in this contract, are to be here construed in the ordinary, reasonable sense in which such expressions are used in business. They are to be understood in the light of all the circumstances under which the contract was made, and with refer- ence to the course of trade in shipping iron from Glasgow." �This clause did not make it obligatory upon the plaintiffs to do everything which was possible as a physical act, if such act lay beyond what shippers of iron might reasonably be expeeted to do. �So far as the obligation of this clause of the contract is concerned it is sufficient if the jury find that plaintiffs diligently made every reasonable effort, in the usual course of commerce, to effect the prompt shipment of the iron. �That, I think, is a correct statement of the ruie, and substantially what I have already stated to you. Plaintiffs also request me to say to you as follows : �" The court instructs the jury that, under the contract sued upon, 't was the right, if not the duty, of the plaintiffs to cause the iron designated therein to be shipped to New Orleans as soon after the contract was made as they could do 80 by exercising all proper and reasonable diligence and judgment. �" If the jury find that it was impossible for plaintiffs to obtain a vessel from Glasgow, and that it was practicable to obtain oue from Leith, and that ship- ment from Leith was a more expeditions way of getting the iron to New Orleans than waiting for a vessel from Glasgow would have been, then plain- tiffs were justified in shipping the iron from Leith instead of Glasgow." �That is given as requested. �The defendant's counsel requests the court to instruct as follows : �" The jury are instructed that the contract sued on was an entire contract for the entire quantity of 500 tons of pig-iron of the description and grade mentioned in the contract, and the defendant was not bound to receive any of said iron unless the entire quantity so contracted for did in fact answer to the description called for by the contract." �Of course, gentlemen, under this contract the defendant was not bound to accept any part of the 500 tons unless the whole was tend- ered him. I do not, myself, remember any testimony tending to show that a smaller part was tendered. �Mr. Hitchcock. No, there is no dispute as to that; it is not as to how much was tendered. �Jvclge McCrary. Yery well, sir ; I say that is a correct rule, at all events. I say, furthermore, at the request of defendants: ��� �