
    May vs. Mitchell.
    Where au agent was vested with power to sell personal property for the best price he could procure, a sale on credit was within the range of his discretion, and if made in good faith, and in accordance with the course of trade at the place where the sale was made, would be valid.
    This is an action of trespass on the case, instituted by May against Mitchell, in the Circuit Court of Rutherford county.
    The declaration charged, that plaintiff delivered three mules to the defendant Mitchell, which Mitchell agreed to take to market and “sell for the best price he could get, and return the proceeds to the plaintiff,” after deducting his expenses and 10 per cent, from the proceeds of the sale of each mule as his compensation for his services; and that defendant failed to comply with his contract.
    The defendant pleaded non-assumpsit, and the case came on for trial, and was submitted to a jury at the May term, 1843, Judge Anderson presiding, when it appeared that the declaration was in accordance with the terms of the written agreement of the parties, and that upon the delivery of the mules the defendant took them to the State of Georgia, and sold them to a company, consisting of three, and took the notes of said individuals, payable twelve months after date. It appeared that he sold them according to the usual course of trade in Georgia, to wit, upon a credit. There was no evidence going to show that the defendant in the sale did not act in good faith, and sell them on the best terms. It appeared that the mules could not have been sold by Mitchell so advantageouslyfor cash as upon credit.
    Mitchell sold other mules at the same time to the same individuals, to wit, Knot, Segur and Crew, and the price of the whole was secured in two notes, the one for $1,300, and the other $1,229.
    The individuals to whom they were sold, were at the time believed to be solvent, and had considerable estate in land and slaves in their possession, but before the expiration of the credit became insolvent, and the debts were lost.
    The Judge told the jury, that the words in the agreement “best price” did not mean necessarily the best cash price, and that the subsequent words, “return the nett proceeds,” did not make it obligatory upon Mitchell to sell for ready money; whether Mitchell was authorized to sell upon credit depended upon the authority conferred, and the usages of trade. He told the jury, they should examine the proof and ascertain whether Mitchell had sold the three mules upon credit, and if so, whether thepurchasers were in solvent circumstances at the time of the sale, or were so represented to Mitchell by persons that a prudent man would confide in, and, also, whether Mitchell had been diligent and faithful in endeavoring to sell the mules for the best prices, and whether the course of trade in the market where sold was to sell such property on a credit, and whether he had used due diligence in attempting to collect from the purchasers the money they agreed to give for the mules at the expiration of the credit, and was unable to collect it, and whether the credit given was a reasonable one; that if the proof on •all these points had satisfied them affirmatively, they should find for the defendant; if he had failed in proving affirmatively any one of these matters, they should find for the plaintiff, the value of the mules and interest.
    The jury rendered a verdict in favor of the defendant, and plaintiff appealed.
    
      •Keeble and C.urrin, for May.
    
      Ready and Burton, for Mitchell.
   TüRley, J.

delivered the opinion of the court.

The plaintiff in error delivered the defendant three mules, which he was to take to the southern market, and sell for the best price that could be obtained, and return the nett proceeds thereof. The defendant carried the mules to the State of Georgia, and there sold them upon a credit, a,nd the purchaser proving insolvent, the purchase money has been entirely lost.

There is no pretence that the defendant, in making the sale, did not act in perfect good faith; but it is contended that he had no authority to sell upon a credit, and must, therefore, be held individually responsible for the value of the mules.

To this argument we cannot give our consent. Upon principle and authority, the defendant was vested with a discretionary power to sell upon the best terms that could be procured, according to the course of trade, in the section of country to which the mules were carried. This the proof shows to have been upon a credit, as that description of property could not be otherwise sold for any thing approaching a fair price.

There has been no abuse of trust on the part of the defendant; he has acted in good faith, and the loss sustained has not been the result of his neglect, and it would be severe justice to hold him responsible. See Story on Agency, 198: Chitty on Contracts, 199: John. Rep. 69, 72.

The judgment of the Circuit Court is, therefore, affirmed.  