At the trial, the circuit court gave to the jury, among others, the following instructions:
“ Third. That press of freight will not excuse failure to carry in ordinary time in cases where such press of freight was known by the company when they received the freight, and had existed a long time when the goods were received, unless they notified the shipper of the necessity of delay.”
“ Fourth. That press of freight will not excuse failure to carry in ordinary time, unless freight is carried in the order in which the same is received.”
“ Fifth. That in case of press of freight and consequent delay, a carrier has no right to give preference to ffreight of one person or company over that of another.,”
*597The appellant contends that each of these instructions was erroneous. The evidence tended to prove that the reason, or one of the reasons, why the respondent’s flour did' not reach New York sooner, was that preference was given to perishable property, such as dressed hogs and poultry ; and it was proved that it was the general custom on all railroads in 1862 to give such perishable property preference over other freights. The fourth and fifth instructions are to the effect that such preference could not be legally given. Common carriers are bound to deliver goods within a reasonable time; and what is a reasonable time depends upon all the circumstances of each particu lar case. If by accident or misfortune, not amounting to an inevitable casualty or the act of Grod, the transportation of the goods is retarded, the carrier will not be responsible for such delay, if he has used due care and reasonable diligence, and the goods are finally safely delivered. Story on Bailm., §545a; Parsons v. Hardy, 14 Wend., 215; Wibert v. N. Y. & Erie R. R. Co., 12 N. Y., 245.
The rule then is, that the common carrier is to deliver the goods within a reasonable time. If the carrier received for transportation goods perishable and those not so at the same time, and there was a press of freight, so that he could not transport and deliver all before the perishable goods would perish, but could deliver the perishable in time to save them, if the delivery of the others was delayed, can there be any doubt what his duty would be ? Can there be any doubt that a preference in such a case would be reasonable, and if reasonable, that the perishable goods, if they did not have the preference, would not be delivered in a reasonable time, and the carrier would be liable ? If not, there is no invariable rule that freight of all kinds shall be transported and delivered in the order in which it is received. If the custom of giving such preference has been long established and is well known, the parties are supposed silently to adopt the custom as part *598of tbe contract, unless it conflicts with its express terms. Cooper v. Kane, 19 Wend., 386; 6 T. R., 14; id., 398. We doubt, however, whether the proof showed that this custom had been so long established as to make it part of the contract. But we think the practice reasonable, and not in violation of any rule of law. We therefore hold the fourth and fifth instructions erroneous.
We are also of opinion that there is no rule of law requiring the notice mentioned in the third instruction. We have seen that the general rule is, that the common carrier is to transport and deliver the goods within a reasonable time; and what is a reasonable time is to be determined by all the circumstances of each particular case. If the shipper has not all the information he desires as to the circumstances or causes which will expedite or delay the delivery of the goods, it would be more reasonable that he should make inquiry, than to impose on the company or its agents the duty of giving unasked a statement of such circumstances.
The rule of damages as given to the jury by the circuit court was, that the plaintiff was entitled to recover the difference between the price of the flour when it should have arrived in New York, and the price at the time when it did actually arrive, if it was sold at the latter depreciated price. What is the measure of damages in such a case has been differently decided by different courts of the state of New York, and each has supported its own views by learned and able opinions. See Wibert v. N. Y. & Erie R. R. Co., 19 Barb., 36; Jones v. N. Y. & Erie R. R. Co., 29 id., 635; 22 Barb., 278; 26 Barb., 564. The circuit court followed S. & M. R. R. Co. v. Henry, 14 Ill., 156; G. & C. U. R. R. Co. v. Rae, 18 Ill., 488, and Nettles v. S. C. R. R. Co., 7 Richardson, 190. We think, on principle as well as authority, the ruling of the circuit court as to the measure of damages was right.
Again, it is contended by the appellant that the court below *599erred, in ruling out tbe evidence offered to explain tbe written contract. Tbe construction of tbe contract on its face was settled by tbe decision of a majority of tbis court when tbe case was before us on a former appeal, and tbat decision in tbis ; case is binding upon us. If there is an ambiguity in tbe contract (and I am inclined to tbink there is), tbe testimony should have been received. In tbe construction given to tbe contract by tbe majority of tbe court, it appears to me tbat no force or meaning whatever was given to tbe words “ as agents and forwarders” in tbe contract. With tbe testimony offered they would be full of meaning. Tbe majority of tbe court, however, are of opinion that there is no ambiguity, and tbat tbe. offered testimony was rightly rejected.
By the Court. — Tbe judgment of tbe circuit court is reversed, for errors in giving tbe third, fourth and fifth instructions asked by tbe plaintiff, and a venire de novo awarded.