
    Charles Porter versus Nathan Blood.
    Where the maker of a promissory note delivered goods to the holder to be fold and the proceeds appropriated towards the payment of the note, and a sale of some of the goods was not effected until nearly six years after, when the value of the goods had fallen, it was held, that there being no controversy as to the facts, it was for the court to determine whether the holder was chargeable with negligence as a factor, and that,in this instance he was so chargeable.
    If such sale is made and the proceeds indorsed upon the note within a reasonable time, it will be considered, in reference to the statute of limitations, as a payment made by the maker’s order. But if the holder, without any assent on the part of the maker or any notice to him, makes the sale and indorsement after a reasonable time has elapsed, this will not take the note out of the statute.
    Assumpsit on a promissory note made on the 19th of May, 1814, by the defendant and one Porter, whom the defendant survived, for the sum of 559 dollars, with interest, payable on demand.
    The defendant pleaded the general issue and the statute of limitations. To this last plea the plaintiff replied, that the action accrued within six years before the commencement of the suit; and issue was joined thereon. On the trial of the first issue, evidence was given by the plaintiff, that on the 3d of November, 1815, he commenced a suit upon the note against the two promisors, and caused the property in Blood’s store in Salem to be attached, but that on the same day he discontinued the suit, Blood having delivered to him certain cordage and other articles of merchandise. The plaintiff gave credit to the defendant for the proceeds of the merchandise, stating it as sold by him or his order, and allowing interest from the several times when it was sold, and on the 11th of February, 1822, indorsed on the note the sum of 551 dollars, being the amount of the proceeds and interest, leaving a balance due upon the note. The defendant objected to the sums credited as the proceeds of the merchandise, on the ground that the plaintiff had unreasonably and negligently delayed the sale of part of the cordage until May 1817, and February 1821, by means of which delay that part was sold much below the market value at the time when the plaintiff received it and for a reasonable time afterward. It appeared that within a few.days after the receipt of the cordage by the plaintiff, who resided in Haverhill, he placed it in the hands of one Parks, an auctioneer in Boston, for sale, without any limitation as to-price ; that Parks soon after sold several parcels, partly by auction and partly by private sale, at from ten to twelve dollars a hundred weight, and after-wards several times offered the residue for sale by auction, but was not able to obtain what he thought a sufficient price, and that he sold the last parcel in August 1821, and paid the proceeds to the plaintiff in February 1822. Between the first and last sales the plaintiff called several times on Parks and directed him to close the sales. No account of sales was forwarded to the defendant, and no notice given him that any of the property remained unsold, nor was there any demand of payment of the note until the commencement of this action, after the property above mentioned was received by the plaintiff. Parker C. J. instructed the jury, that the plaintiff was bound to dispose of the property within a reasonable time, and there being no evidence to justify the delay without notice to the defendant, the sale in August 1821 was not within a reasonable time, and that the plaintiff was accountable for all
    
      the cordage at the rate at which the sale was made b} Parks In 1815. The jury estimated the cordage at that rate, and the other articles according to the representation of the plaintiff, and their verdict on the first issue was for the balance of the note thus ascertained.
    On the other issue a verdict was returned for the defendant, upon the express direction of the chief justice, that the credit of the proceeds of a remnant of the cordage, sold by Parks in August 1821, which were paid to the plaintiff in February 1822, was not sufficient evidence in point of law to take the case out of the statute of limitations ; that without any account transmitted to the defendant, or any notice that the property remained unsold, or any demand of the payment of the note after the delivery of the merchandise to the plaintiff, or any evidence that the defendant had knowledge of the plaintiff’s proceedings in relation to the same, this final sale would not be considered in law a payment by the defendant or an acknowledgment of mdentment on me note.
    If the instruction in regard to the statute of limitations was right, judgment was to be entered for the defendant; if wrong, and the jury plight legally and ought to have inferred, from the facts proved, that the receipt of the proceeds of the sale of the last parcel of cordage was an acknowledgment of indebtment by the defendant, or otherwise avoided the statute, the verdict on the second issue was to be set aside and judgment to be entered on the verdict on the first issue, unless the instruction was wrong as to the sum for which the plaintiff was accountable for the cordage.
    
      Shaw and Bartlett, for- the plaintiff,
    contended, that in respect to the second issue, the question of negligence was to pe considered as if the action were by the defendant against the plaintiff for unreasonably delaying to sell the goods, and this question should have been left to the jury ; 2 Stark. Evid. 973 ; Moore v. Mourgue, Cowp. 479 ; Day v. Noble, 2 Pick. 615. The plaintiff was the defendant’s agent to sell the goods and apply the proceeds towards the payment of the note, and so the payment indorsed took the case out of the statute of limitations ; Whitcomb v. Whiting, 2 Doug. 652; Jackson v. Fairbank, 2 H. Bl. 340 ; Chandler v Windship, 
      
      b Mass R. 310 ; Roseboomv. Billington, 17 Johns. R. 182 ; Hunt v. Bridgham, 2 Pick. 581. The plaintiff’s supposed negligence did not put an end to the agency. In regard to notice, it was the part of the consignor to call upon the consignee to account. 1 Livermore on Principal and Ag. 457; Topham v. Braddick, 1 Taunt. 572.
    
      Leland, for the defendant,
    cited Palmer v Moxon, 2 Maule & Selw. 50 ; 7 Com. Dig. 406, Temps, D; Ellis v. Paige, 1 Pick. 43 ; 3 Stark. Evid. 1407 ; — Brandram v. Wharton, 1 Barn. & Ald. 463.
   Wilde J.

delivered the opinion of the Court. The plaintiff moves for a new trial, in the first place, because the question, whether he was chargeable with negligence as the defendant’s factor, was not submitted to the jury, with proper instructions as to the law. This course is undoubtedly proper m all cases involving a mixed question of law and fact. But when the facts are not controverted, it becomes the duty of the Court to direct the jury as to the law. The case reported is of the latter description. The facts proved by the plaintiff were not controverted. The only question was, whether on these facts the law will imply a promise on the part of the defendant, so as to take the case out of the statute of limitations ; and this clearly is an unmixed question of law.

The next, and the principal, ground relied on is a supposed misdirection to the jury ; and several cases have been cited to show, that on the facts reported, the plaintiff is entitled to a verdict on the second issue. The case supposed to be most in point by the plaintiff’s counsel, is that of Jackson v. Fairbank, 2 H. Bl. 340. But this case has been very much shake r by that of Brandram v. Wharton, 1 Barn & Ald. 463. We do not, however, deem it necessary to express an opinion as to these cases ; because the plaintiff does not attempt to avoid the statute of limitations, by showing, that h® was acting under the authority of a joint promisor with the defendant, but by the direction of the defendant himself. And it cannot be doubted, if he was so directed, his acts in pursuance of the direction will bind the defendant.

The question, then, is reduced to this, whether the defendant did direct the sales of the merchandise to be made as they were made, and the proceeds thereof to be indorsed on the note. This direction wras not given in express terms ; but considering the attachment, and the relinquishment of it by the plaintiff, we cannot doubt that it was the intention of the defendant, that the proceeds of the sales of the merchandise consigned should be applied towards payment of the note. The evidence is certainly sufficient to authorize this inference. If therefore the plaintiff had immediately sold the goods, and indorsed the proceeds of the sale on the note, it would have been considered as a payment made by order of the defendant. But this should have been done in a reasonable time, otherwise the interest of the defendant might have been injuriously affected, and there would be "io termination to his liability. In the mean time other payments might have been made, and if the defendant had lost the evidence of them, he would be deprived of the benefit of the statute by an implied acknowledgment against his interests and without his consent.

The question then is, whether the sales were made within a reasonable time. We think very clearly that they were not. Admitting the sales to be valid, so as to vest the property in the purchasers, it does not follow that the plaintiff was authorized to appropriate the proceeds, so as to revive the defendant’s liability without his assent, and without rendering an account of sales, or giving him any kind of notice.

Before the appropriation was made, although after the greater part of the property had been sold, the note was barred by the statute, and this was such a change of circum stances as must have terminated the plaintiff’s authority as an agent, if it had not been terminated before. But even it the note were not barred by the statute at the time of the in-, dorsement, we cannot admit that the defendant would have been bound by it. His direction, as we must construe it, was to make sale of the goods in a reasonable time. ' Tliis the plaintiff was bound to do, for the purpose of saving costs, and to stop the interest. If the plaintiff were negligent, he must not be allowed to avail himself of his own laches in order to charge the defendant.

Upon the whole, the circumstances of the case will not warrant the presumption of any acknowledgment of the debt by the defendant, except at the time of the consignment of the goods, or a reasonable time after, within which a sale of them might have been made.

Judgment according to the verdict on the second issue. 
      
       See 1 Stark. Ev. (5th Amer. ed.) 447 to 464.
     
      
       In Miller v. Lancaster, 4 Greenl. 159, it is held, that it is not within the province of the jury to decide what acts or declarations amount to a new promise. See also Snook v. Mears, 5 Price, 638; Boyd v. Grant, 13 Serg. & Rawle, 124, acc.; Buswell v. Roby, 3 N. Hamp. R. 467; Swan v. Sowell 2 Barn & Ald. 763, contra.
      
     