The opinion of the Court was drawn up by
Whitman C. J.The note in suit was payable, “from the avails of the logs bought of Martin Mower, when there is a sale made.” The logs referred to, were sold to the defendant for $6496,02; and many years had elapsed after the giving of the note, before the suit was commenced. It is contended, that the logs could not be sold; and that, on being manufactured into boards, there was a total loss to the owners; and it was offered to be proved, that it was the understanding of the parties, if such should turn out to be the case, that the note was not to be paid. We think the Judge at the trial did right in not permitting such a defence to be set up, as it would have been manifestly opposed to the spirit and meaning of the written contract, into which the defendant had entered. By the terms of that contract it could not be inferred, that the plaintiff had consented to subject himself to any such contingency. His agreement in terms was to wait till the logs could be sold. Thus the defendants had a duty to perform. They were bound to sell the logs and to do it within a reasonable time. A reasonable time for such purpose, had long since elapsed. To pretend that a quantity of logs, for which the defendant had been contented to pay $6496,02, could not be sold for the amount, ($233,91, and interest) due to the plaintiff, cannot be deemed otherwise than preposterous. Judgment must be entered upon the default.