
    Ebed Wilder versus Andrew Sprague.
    The defendant accepted an order for the payment of a specified sum “ when he sold certain wharf logs.” Three years after its acceptance, a suit was brought upon the order, and the defendant was permitted to show his inability to effect a sale of the logs, notwithstanding he had used all common and ordinary means to do so.
    The question of unreasonable delay in making the sale was properly submitted to the jury.
    Exceptions from the ruling of Cutting, J., — and on motion to set aside the verdict as being against law, &c.
    This was an action of assumpsit, against the defendant as acceptor of an order drawn by one Wilbur in favor of Bela Wilder & Co., payable when he shall sell certain specified wharf logs.
    This suit was commenced by the plaintiff, as surviving partner, more than three years after the defendant’s acceptance.
    , At the trial, in defence, it was contended that the logs had not been sold, although the defendant had used all common and ordinary means to sell them, and testimony was ad-* mitted, subject to objection, tending to prove such to be the fact.
    The plaintiff’s objection to the admission of such testimony was upon the ground that the order was payable absolutely, and that the lapse of timé, between the date of the order and that of the writ, was sufficient to exclude such testimony. The verdict was for the defendant.
    
      Bradbury & Smart, for the plaintiff,
    cited in argument Sawyer v. Hammatt, 15 Maine, 40; Howe v. Huntington, 15 Maine, 350; Sears v. Wright, 24 Maine, 278.
    
      O. JR. Whidden, for the defendant,
    argued that the cases cited from 15th Maine Reports were not in conflict with the ruling in the case at bar; that the case of Sears v. Wright was distinguishable from this, in this important particular, that there the logs had been sold and the only point decided related to the admissibility of parol testimony to explain and vary the written agreement.
    That the questions at issue involved matters of fact, he cited 1 Stark. Ev., 452, 454. The case was properly submitted to the jury. Howe v. Huntington, 15 Maine, 350; Hill v. Hobart, 16 Maine, 164; Porter v. Blood, 5 Pick., 54; Bradford v. Drew, 5 Met., 188.
   The opinion of the Court was drawn up by

Appleton, C. J.

This is an action of assumpsit against the defendant upon his acceptance of an order of the following tenor. "Pembroke, Feb. 25, 1856.

" Mr. Andrew Sprague —Please pay to Bela Wilder & Co., or order, thirty-one dollars, when you sell the wharf logs I have hauled for you this winter.

" Josiah E. Wilbur.

"Accepted. — Andrew Sprague.”

This action was commenced Sept. 20, 1859. More than three years had elapsed between the date of the defendant’s acceptance and the bringing of this suit. Had the case rested here, the plaintiff would have been entitled to recover. The remarks of Mr. Justice Coleridge, in Doe v. Ulph, 66 E. C. L., 208, where the Court, thinking the delay unreasonable, ordered judgment for the plaintiff, would not have been inapplicable. " Prima facie that was an unreasonable delay; and it lay upon the defendant to account for it. He did not do it; and there being no evidence to show that the delay was reasonable, the jury should have been directed to find for the plaintiff; and the verdict must be entered for him accordingly.”

The defendant was permitted to show that the logs had not been sold, and that, notwithstanding he had used all common and ordinary means to sell them, he had been unable to effect a sale. To the introduction of this proof exceptions were taken.

The promise was to pay when the logs should be sold. The defendant cannot he permitted to escape liability by refusing to sell, or by the neglect of the common or ordinary means to effect a sale. This, too, should be done in a reasonable time. But the Court’cannot know the limit of time within.which, by the exercise of common and ordinary care, a quantity of wharf logs could be sold. The circumstances of each year may vary. What is a reasonable time must depend upon the fluctuating contingencies of commerce. The market may vary. The demand, for the time being, may cease. Inability to sell, accompanied with reasonable efforts to effect a sale, py the very terms of the acceptance, cannot and do not make the defendant liable. The failure to sell, to charge him, must have been through his default. The defendant did not agree to pay, if, using all reasonable means, he could not effect a sale, nor could the plaintiff" have expected he should.

The Court cannot define the precise termination of what would be a reasonable time in which to have sold. What is a reasonable time is a variable quantity. Upon the facts before the jury, the instructions given were correct. At any rate they are not the subject of exception.

The case of Sears v. Wright, 24 Maine, 278, varies in very material respects from the one now before us. There the logs had been manufactured into boards and the boards had been sold before the suit was commenced. Parol evidence was offered to vary the meaning of the written contract entered into by the defendant and was excluded. The exclusion was adjudged proper. As the defendant, in that case, had long before manufactured the logs into boards, it was impossible to show the logs could not have been sold, if they had not been manufactured. The similarity between the cases is apparent rather than real.

Exceptions and motion overruled.

Rice, Cutting, Kent and Walton, JJ., concurred.  