Epitomized Opinion

This was an action by the Island & Gypsum Fruit Co. against the American Ry. Exp. Co. to recover dam.ages for unreasonable delay in shipping of certain fruit. The plaintiff was engaged in selling and shipping fruit. The Fruit Co. had turned over to the Express Co. six carloads of peaches, to be shipped and delivered to certain consignees. The Express Co. agreed to deliver the fruit within a reasonable length of time. A judgment was rendered for the plaintiff in the sum of $4,-242.91. In affirming the judgment of the lower court, the U. S. Circut Court of Appeals held:

1. The fact that Fruit Co., before making a shipment of fruit by the Express Co. had sold the same to the consignees f. o. b. place of shipment, held not to defeat its right to maintain an action for damages for negligent delay in transportation, causing damage to the fruit, where because of sucjh ¡damage the consignees refused to accept it, the Fruit Co. released them from their contracts, and the fruit was sold for its account.

2. Instructions submitting to the jury the question whether a shipment of peaches was delivered to Express Co. as express matter, to be carried in the express service, and instructing them that, if they so found, it was required to carry and deliver them within the usual and customary time of express service, held correct.