(after stating the facts). Defendant does not question the authority of its agent at Bangor to make the special contract relied upon by plaintiff, nor does it question its validity; therefore, no discussion of these questions is necessary. Upon this record and fofi the purposes of this case we may assume authority to make the contract and validity of it if made. A careful reading of the testimony of Mr., Todd, defendant’s agent, called under the statute for cross-examination, and the testimony of Mr. Puffer, is convincing that there is no substantial dispute as to the making of the special contract. The testimony of both witnesses establishes it. That it was breached is beyond question. That the breach occurred at Bangor is' evident. Under these circumstances we must lay aside the arguments advanced in the brief of defendant’s counsel dealing with the liability of a common carrier in the absence of a specific contract. In 4 R. C. L. p. 739, it is said:

“Where, however, the carrier has made an express contract to carry and deliver goods within a specified time, he is bound to fulfill his contract; nothing will *429excuse him, and he is liable for any delay, no matter from what cause it may have arisen. This result follows logically from the well-settled, rule that where the law creates a duty or charge, and the party is disabled from performing it without any default in himself, and has no remedy over, the law will excuse him; but where the party by his own contract creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident or delay by inevitable necessity, because he might have provided against it by contract.”

Defendant’s counsel also insists that plaintiff by the act of taking possession of the berries and shipping them to Chicago released defendant. This contention can not be sustained either as matter of fact or as matter of law under the facts. Defendant’s agent was insistent that plaintiff take the berries and give up the receipt or bill of lading. He visited plaintiff’s office several times in his endeavor to accomplish this and finally succeeded in getting plaintiff’s wife to sign her husband’s name to an order to hold the berries, the language of which order was dictated by him. The breach of the contract had then occurred; the damage had been then done. Plaintiff in an endeavor to minimize his damages sought to dispose of the berries. He telephoned two houses in Grand Rapids but after the early market the price then run down. Plaintiff also tried to dispose of the berries in Kalamazoo, in South Haven, to truckmen running through Bangor, and in Chicago. The latter place was deemed the most available and they were shipped there. Neither under the facts nor the law was defendant released from the damages already done, nor was there any consideration for such a release, nor was release pleaded by defendant. The trial court did not err in declining to direct a verdict for defendant.

The trial judge instructed the jury that if plaintiff was entitled to recover they should assess his damages at the difference between the market value of *430the berries at Bangor and what he received in a good faith effort to minimize his loss. We do not perceive that defendant was prejudiced by this instruction or by the fact that the Bangor market was named. Had defendant performed its contract and delivered the berries in Grand Rapids for the early market plaintiff would have received $4.75 a case for them. The market price in Bangor was considerably less. Plaintiff was shipping the berries for the early Grand Rapids market and defendant's agent was so advised. The early Grand Rapids market for which the berries were consigned was strong although it fell off later in the day. Taking the charge as a whole we are persuaded that it was. more favorable to defendant than it was entitled to.

We have examined the assignments of error dealing with the admission of evidence but find no reversible ruling in any of the errors assigned.

The judgment will be affirmed.