The opinion of the court was delivered by
Woodward, J.The plaintiff declared on a several contract with the ..defendant — the general issue was pleaded, and the jury have found for the plaintiff. If the contract was joint, the nonjoinder of the other contracting parties should have been pleaded in abatement. In the' absence of - such a plea, the defendant got more than he was entitled to have — a direction from the court submitting the question of a joint contract to the jury. After they have found against him on such an issue, we ought to hear no more of this point.
In looking through the errors assigned, the only one that seems to be worthy of any special notice is the 6th.
The plaintiff alleged that he conveyed to the defendant, on the 19th of October 1848, a fourth of the “Hopewell property,” in satisfaction of an indebtedness of $5000, and under a verbal agreement that he, the plaintiff, should have all the profits the-property could be sold for, within five years, over and above that sum and the interest.
On the 1st of February 1853, the plaintiff gave the defendant notice, in writing, that the “ property can now be sold for a very great advance, and you are hereby notified to sell the same at the highest price, or to allow the subscriber to do so; and after paying your debt, interest, and reasonable costs and expenses, to pay the balance to Joseph Milliken and the representatives of James Milliken. On failure to do so, you will be held liable for all loss and damage.”
The defendant’s 6th point asked the court to say, that if he sold the property for as much as could have been obtained for it on 1st February 1853, the plaintiff cannot recover, unless he sold the same for more than the amount of his debt, interest, and reasonable expenses.
The court refused to affirm this point, and instructed the jury that the defendant would be liable for whatever Milliken could, at ■any time within the five .years, have sold the property above the indebtedness referred to.
There was some evidence that the time given for a resale of the ■property was two -years, but as the court submitted the period of probation to the jury, and they have found it was five years, we .-assume that to have been the period contracted for. Doubtless, Milliken would have been .entitled to the benefit of the whole period, if he had not voluntarily abbreviated it. When, about four years .and -a third had elapsed, he called on Means to sell now, or allow him to do so, and threatened him with the loss and damage of longer 'delay, did -he not abbreviate it ? Could he in reason *521ask anything more of Means than to account for the value of the property on that day ?
We think not. Though entitled by his contract to the market for five years, he was not bound to wait for the last day of the period, but might avail himself of the highest price, at any time within the five years. Possibly the best sale could be made a little short of the extremest limit, and the contract, construed most favourably to Milliken, would allow him to take advantage of the very nick of time. He thought so. He construed the bargain in this manner, and accordingly fixed the 1st February 1853.
Then, in all reason, the measure of damages ought to have been the difference between the market value of the property on that day, and the indebtedness which Means had a right to retain. More especially is this true, when it is considered that Means, without any fraudulent intent, but probably understanding the contract differently from Milliken, had, on the 8th January 1853, sold and conveyed the property for $5700 — a sum considerably less than the indebtedness, with interest and expenses, which it was the prime object of the arrangement to secure. He could not, of course, bring the property to a sale on the 1st February 1853, but he was called on to answer in this action for its value, and under the circumstances of the ease, he had a right to insist that its value should be ascertained as of that day.
If he had availed himself of the improved market between that day and the 19th October 1853, when the five years would have been out, there would be justice in requiring him to account accordingly, but he did not. It may be said, that he ought to have waited. Perhaps he ought, if the plaintiff had let him alone. But after receiving so imperative a notice he was not bound to take the risk of waiting. Had the market declined after the notice, the consequences of delay would have been his, but having substantially obeyed the call, by offering on this trial to answer for the value of the property on the day fixed by the plaintiff for its sale, it is immaterial whether the property rose or fell after that date. It was virtually taking the plaintiff at his word, and selling the property on the 1st February 1853. Had this been the form of the transaction, nobody would have thought the defendant liable in damages. But although it could not take this form, the 6th point brought the matter substantially to the same test.
The point should have been affirmed, and thus a measure of damages furnished to the jury to apply under the appropriate proofs.
The judgment is reversed, and a venire facias de novo is awarded.