
    Benjamin Day versus Joseph Noble.
    Where a master of a vessel carries goods to a distant port, with orders to dispose of them for the most he can obtain, but is unable to find a purchaser, he is justified in leaving them in the hands of a merchant in good credit, to be sold for the owner.
    This was assumpsit upon an undertaking of the defendant to carry two boxes of marble and one box of granite from Salem to Norfolk and a market. The defendant gave the plaintiff a receipt, dated the 12th of June, 1821, as follows : “ Received the above mentioned boxes on board the schooner Penguin, Noble, master, bound for Norfolk and a market, on account of Benjamin Day, to sell for him, and consigned to me for sales and returns ; ” and the plaintiff gave the defendant the following orders, of the same date : “ You will dispose of the above articles for the most you can obtain, and invest the proceeds in flour ; if not convenient, you will make returns in cash.”
    At the trial, which was before Putnam J. upon the general issue, it was testified that the defendant arrived at Norfolk in June or July and stayed there 17 or 18 days ; that he tried to sell the articles there, but could not effect a sale; that he then went to Alexandria and stayed there about a week, :i could not sell there ; that he then went to Georgetown, and stayed there about a week, and caused the articles to be advertised in Georgetown and Washington news-papers, but that no sale could be made of them; that he could not get any offer for them; that he did business with one Kennedy, at Georgetown, who was then in good credit as a merchant, and that he left the articles with Kennedy to be sold for the account. of the plaintiff.
    The jury were instructed, that if the defendant could not have effected a sale of the adventure without a great sacrifice, he was justified in depositing it with a merchant of good credit to sell for the plaintiff’s account. A verdict was found for the defendant, and the plaintiff moved for a new trial on account of a supposed misdirection of the judge.
    
      Saltonstall and Thorndike, in support of the motion, insisted that these orders were peremptory, and that the defendant was bound to sell the property for the most it would fetch ; so that he had no discretion to sell or not, as he might think most expedient; and that if he could not sell, he ought to have brought the articles back to Salem. Where a consignee has positive orders, he will not be justified in having disobeyed them, notwithstanding he may have acted in good faith. Rundle v. Moore, 3 Johns. Cas. 36 ; Guy v. Oakley, 13 Johns. R. 332.
    
    
      Pickering and B. Merrill, for the defendant,
    said that the inability to sell was a contingency which was not anticipated and was not provided for by the parties ; that in such a case the defendant was bound to the exercise of good faith and reasonable diligence ; that he ought to conform to the usages of trade ; and one of the witnesses had testified expressly, that it is usual to deposit goods, when there is no sale for them and no order to bring them back. Evans v. Potter, 2 Gallison, 13 ; Lawler v. Keaquick, 1 Johns. Cas. 175 ; Clark v. Van Northwick, 1 Pick. 343 ; Ludlow v. Simond, 2 Caines’s Cas. in Err. 49.
    
      
       See also Cunningham v Bell, 5 Mason. 161.
    
   Parker C. J.,

in delivering the opinion of the Court, said in substance, that the case depended on the question, whether the plaintiff’s instructions to the defendant were peremptory or discretionary, under circumstances not contemplated at the time. The counsel for the plaintiff have argued as if the in structions to sell were peremptory, so that if the defendant could not sell he was bound to bring the articles back. But we do not think this the true construction. There is nothing that looks like an order to bring back the articles, if the defendant should be unable to sell; and it is well known law, that if a consignee cannot sell without a great sacrifice of the property, he is not obliged to sell; such a circumstance being considered as an unexpected contingency. The defendant was unable to effect a sale at Norfolk, Alexandria or Georgetown, and the question is, whether it was necessary for him to bring back these bulky articles to the land of stones, or whether he might leave them where they might become valuable. We think that the leaving of them in the hands of a person in good credit at the time, was not a breach of duty in the defendant.

Judgment according to the verdict.  