The opinion of the court was delivered, January 5th 1869, by
Agnew, J.Had there been no express contract for the delivery of the boats to the plaintiff this action could not be maintained. Rut it was a part of the agreement, that the boats should be delivered by the defendant, after they were finished, to the plaintiff, for the purpose of sale. As his security the defendant took the plaintiff’s express covenant that he would sell the boats to the best advantage and for the best price he could obtain, and would pay over to the defendant the one-half of all such profit and advantage as should accrue from the sale. It is very clear, therefore, that the plaintiff was entitled to the exclusive possession of the boats to enable him to perform his covenant. The delivery was to be at any place where the plaintiff should desire to receive them. In point of fact he did demand and receive them from the person in whose custody the defendant had left them, and ran *390them to the mouth of Clarion river, where he left them temporarily, to go away on business, and in the meanwhile the defendant retook them. If the account for the expenditures in the building and finishing of the boats had not been settled at the time they were finished, the defendant could have called on the plaintiff to pay up, and enforced his right by an action upon the mutual covenant that each should furnish one-half of the money as required. But, as remarked in the somewhat analogous case of Corbett v. Lewis, 3 P. E. Smith 330, the plaintiff’s liability is to account to the defendant for the proceeds of sale; and his right to make the sale, and for this purpose to demand the possession, is as unquestionable as the terms of the agreement.
The court were right, therefore, in their instruction to the jury on this point, and the judgment must be affirmed.
Judgment affirmed.