#### Elizur Linsly, plaintiff and respondent, *vs.*Josiah Carpenter, defendant and appellant.

1. The law implies an agreement on the part of consignees of property intrusted to them for sale, to obtain the best price, by means of faithful and diligent efforts to ascertain and procure at 'least the highest market value of the property consigned.

2. Where merchandise was delivered to the defendant, under an express agreement on his part, to sell the same for the highest market price, and to make extraordinary efforts to sell the same for the highest price, for which efforts he was to receive an extra commission; *Held,*that the agreement required the exercise of every reasonable and diligent effort by the defendant, to obtain the highest market .price-for the .property.

*2013. In an action upon such contract, *it was held*that the principal, if not the sole, question which it was necessary to submit to the jury was, whether the defendant had complied with his express or implied agreement by obtaining for the merchandise the highest market price. In determining that question, it was the duty and province of the jury to examine the evidence of the quality of the merchandise, and of its fair value in the market, at the time of the sale; and that their determination of that question would not be disturbed, unless it was so clearly against the weight of evidence as to lead to the conclusion that they were influenced by wrong motives.

4. The evidence, in respect to quality and price, though conflicting, being quite sufficient to justify the jury in finding that the defendant did not perform his duty as a commission merchant by obtaining the best price for the plaintiff’s property; he having sold in great haste, without notice, and for a price, according to the weight of evidence, below the market value; a verdict and judgment in favor of the plaintiff were sustained. .

(Before Hobertsob, Oh. J., and Monebl and Garvib, JJ.)

Heard May 7, 1866;

decided June 30,1866.

This action was brought to recover, the price of a quantity of tobacco delivered by the plaintiff to the defendant, a commission merchant, for sale. The complaint alleged, that the tobacco, which consisted of 3812 pounds first and 957 second quality, Connecticut and leaf 'tobacco, was delivered under an express agreement with the defendant, that he should sell the same for the highest market price, and should make extraordinary efforts to sell the same for the highest price, and for which efforts he should receive five, per cent of the proceeds, which was two and a half per cent above the usual commissions. That the market value was at least fifty cents per pound for first quality, and at least twenty cents per pound for second quality. That the defendant, in violation of his agreement, and with intent to cheat and defraud the plaintiff, sold, or pretended to have sold, the tobacco on the day it was received by him, at fourteen cents a pound, and refused to account for any sum beyond fourteen cents per pound.

The answer denied that the tobacco was first and second quality, and averred that it was of greatly inferior quality and of a kind known as “ fillers and binders,” and that the same was sold at the highest market price.

The action was tried before Justice Jones, and a jury. There was no exception to the charge, and only one exception *202to the admission or rejection of evidence, which was abandoned on the argument of the appeal.

The jury found a verdict for the plaintiff, and judgment was entered thereon. A motion for a new trial on the minutes of the court was. denied, and the defendant appealed from the judgment and order.

*S. Sanxay,*for the appellant.

*W. Gleason,*for the respondent.

By the Court,

Monell, J.

A compliance with the agreement alleged in the complaint, and proved substantially by the testimony of the plaintiff, required the exercise of all reasonable and diligent, efforts, by the defendant, to obtain the highest market price for the tobacco. Independently, however, of any express agreement to use extraordinary efforts to sell, the law implies an agreement, on the part of consignees of property intrusted to them for sale, to obtain the best price, by means of faithful and diligent efforts to ascertain and procure, at least, the highest market value of the property consigned. The principal, if not the sole, question, therefore, which it was necessary to submit to the jury, was, whether the defendant had complied with such express or implied agreement, by obtaining for the tobacco the "highest market price. In determining that question, it was the duty and province of the jury to examine the evidence of the quality of the tobacco, and of its fair value in the market at the time of the sale *;*and their determination of such questions will not be disturbed, unless it is so clearly against the weight of evidence as to lead to the conclusion that they were influenced by corrupt motives.

I have read the evidence attentively, and am unable to find any reason for disturbing the verdict. The plaintiff furnished much proof of the quality of the tobacco. He was himself a grower of and dealer in tobacco. He assisted in assorting and casing some of it, and examined the whole, and' says it *203was of fair quality. The witness Moore, who raised the tobacco, described the manner of airing and packing. He says it was assorted into two qualities, fillers and wrappers, and that it was a good quality of tobacco. Sidney 0. Linsly also testified that the quality was good. Two witnesses, William and Levi Palmer, furnished evidence that first quality tobacco was worth from forty to fifty cents per pound, and second quality from ten to fifteen cents. Besides, the declaration of the defendant, to two of the plaintiff’s witnesses, that Connecticut seed leaf was worth from forty-five to fifty cents, was uncontradicted.

In opposition to this there is only the evidence of one witness and the defendant’s' testimony. Dreyer, who purchased the tobacco, says he paid the market price, but could not say what the quality was, as he had no particular recollection of that particular lot. The defendant testified that it was the poorest grade of Connecticut tobacco, and that he got more for it than he could have since got.

The evidence in respect to quality and price was .conflicting; but, in -my judgment, it was quite sufficient to justify the jury in finding that the -defendant did not perform his duty as a commission merchant, by obtaining the best price for the plaintiff’s property. He sold in great haste, without notice, and for a price, according to the weight of evidence, below the market value.

The judgment and order should be affirmed, with costs.