
    Jeremiah Hemenway versus Artemas Hemenway.
    Where the defendant, being employed by the plaintiff to sell land, accordingly sold the same and took a promissory note for part of the proceeds, when he might have received the money, and upon being called on to pay over the proceeds said he knew nothing about the matter, it was held that the jury were warranted in finding that he unreasonably delayed to pay over the proceeds, although the action was commenced before he had collected the note.
    Assumpsit for money had and received. Trial before Putnam J.
    On the 12th of August, 1824, the plaintiff, being a creditor of Asa Lawrence, employed the defendant to take a conveyance from Lawrence of his right in equity to redeem certain land, and to make sale of the' land upon the best terms he could, and after discharging the incumbrances, to pay the surplus to the plaintiff. The defendant sold the land to one Eaton in March 1825 for 2335 dollars, payable on the 1st of April then next. On the 30th of Marcli Eaton paid all the purchase money except 28 dollars, for which he gave his promissory note, and which was not paid when this action was commenced, ,viz. May 28, 1825, but was paid in June following. Eaton was in good credit, and the defendant might have received the 28 dollars on the 30th of March. The plaintiff was entitled to about 70 dollars, if he was to recover any thing in this action. On the day when the action was com-
    menced, the plaintiff made a demand on the defendant of what was due on the Bully execution, as the execution against Lawrence was called. The defendant replied that “ he knew nothing about it,— if Bully owed any thing, he might collect it himself,— he had nothing to do with it,— he had before said all that he could say about it.” The defendant paid off the incumbrances as early as March "30, 1825.
    The defendant contended that he was not liable to be sued for the surplus proceeds of the land, until he had collected the whole, or haa been guilty of some fraud or unreasonable neglect. And the jury were instructed to find for the plaintiff, if from the evidence they believed that the defendant had conducted himself fraudulently, or if he had unreasonably delayed to settle and finish the business when the demand was made ; otherwise to find for the defendant. They found foi ^le plaintiff, and the defendant moved for a new trial on the ground that the evidence would not warrant the finding.
    Hoar, for the defendant.
    Lawrence, for the plaintiff.
   Per Curiam.

We do not see cause to set aside the verdiet. This case was put to the jury in the most favorable light for the defendant. As he had no authority to sell on credit, he might have been held as having assumed the debt when he took the notes payable to himself. This howe\ er would have been slridum jus. But there was no reason for his withholding the balance until June, when he might, according to the testimony of Eaton, have received the 28 dollars on the 30th of March, and certainly ought to have called for it in a few days after the note for that sum was given. He acted also disingenuously when called upon by the plaintiff, for instead of stating that he wanted time to collect the small balance, he denied his responsibility, and turned him over to the original debtor who had paid the debt. These facts were sufficient to justify the jury in finding that he had unreasonably delayed, even if he had not acted fraudulently. 
      
       See 2 Kent’s Comm. (3d ed.) 620 to 623.
     