
    Otis Adams vs. Nathan Foster & another.
    The owner of a vessel having covenanted with the mortgagee thereof, “ forthwith as soon as may be ” to sell the vessel, “ for the largest sum that he could reasonably obtain for her,” and to pay the proceeds, deducting certain expenses and charges, to the mortgagee; it was held, that the owner was entitled to a reasonable time, such as a man diligent in business would require, within which to make the necessary preparations for and to effect a sale, and that if the vessel was lost in the mean time, the covenant was at an end.
    This was an action of covenant on an instrument under seal, dated the 16th of January, 1847, whereby the defendants, in consideration of an assignment made to them by the plaintiff of a mortgage held by him on a schooner, called the John Edwards, then on her passage from Boston to St. Johns, covenanted that they would “ forthwith as soon as may be,” sell the said schooner “ for the largest sum that they could reasonably obtain for her,” and pay the proceeds, deducting certain charges and expenses, to the plaintiff.
    At the trial before Byington, J., in the court of common pleas, it was in evidence or admitted, that the schooner sailed from Boston for St. Johns two or three days before the execution of the instrument declared on, and arrived at St. Johns about the 18th of the same month; that about the 20th she sailed for Yarmouth, for the purpose of obtaining a new register, the old one having been lost, and on the 28th or 29th was wrecked.
    The defendants contended, and introduced evidence to show, that, under all the circumstances of the case, they had performed every thing that was required of them to effect a sale, up to the time that the vessel was lost, and that up to that time they could not have sold her in the manner required by their contract; and they claimed to be exempt from liability on their covenant.
    Tie presiding judge instructed the jury, that the defendants were to have the time necessary to sell the vessel; that they were not to sell her for a nominal, but for a reasonable sum , that they were to take measures immediately to effect a sale, and were to sell her within such tim^ as a man diligent in business could have sold her, in the manner and for the object specified in the contract; that if her registry was lost, and a new registry would be necessary, before the vessel could be sold, they were to attend to that, and were to have the time requisite to perform all the acts necessary to complete the sale and vest the title ; and that if the jury were satisfied, that the defendants, acting as men diligent in business, could not have effected the sale before she was lost, they would not be liable to the plaintiff in this action.
    The plaintiff requested the judge further to instruct the jury, that the defendants were bound to take immediate possession of the vessel on her arrival at St. Johns ; but the judge instructed the jury, that the defendants were to do what was most beneficial to the parties interested; and that if, in the exercise of a sound discretion, the defendants thought it best not to take immediate possession, they were not required to do so.
    The jury returned a verdict for the defendants, on the ground that they had done all that they were bound to do, to effect a sale; and the plaintiff excepted.
    
      JY. Richardson, for the plaintiff,
    referred to Chit. Con. (4th Am. Ed.) 567, 568; Atkinson v. Ritchie, 10 East, 530; Gilpins v. Consequa, 1 Pet. C. C. 85; Hadley v. Clarke, 8 T. R. 259; Baylies v. Fettyplace, 7 Mass. 325; Badlam v. Tucker, 1 Pick. 284; Sumner v. Williams, 8 Mass. 162; Howland v. Leach, 11 Pick. 151; Cambridge v. Lexington, 17 Pick. 222.
    
      E. F. Hodges, for the defendants,
    cited Doe v. Sutton, 9 Car. & P. 706; Hobson v. Middleton, 6 B. & C. 295.
   By the Court.

The words of the covenant, “ forthwith, as soon as may be,” “ for the largest sum that we can reasonably obtain,” allowed a reasonable latitude, as to the time and manner of making the sale; and if the vessel was lost, that put an end to the power, and of course to the obligation, to sell. The rule prescribed by the court as to due diligence was correct. Exceptions overruled.  