Page:Federal Reporter, 1st Series, Volume 5.djvu/337

 WALKËB V. TEAIi. a25 �61 the property from July 6, 1877, until Novembef 30, 1879, it foUows that the value of such wrongful use and occupation by the defendant is the measute of the plaintiff's damage. �'It was also suggested in the argument for the defendant that the damages, in any event, could be scarcely more than nominal, for the reason that the possession of the trustee could not have exceeded 30 days, as he was bound by the agreement to sell on that time after coming into possession. But this is altogether a mistaken view of the eSect and pur- pose of the agreement. The power to take possession of the property, and to sell it upon the default of Goldsmith, was given to the trustee, primarily, for the beneflt of the plaintiff. Thereafter, Goldsmith's only interest in the property was the right to redeem it by the payment of the loan. He had received the plaintiff's money, and in effect conveyed his property to the trustee in payment thereof, so far as it might suffice, subject to his right to redeem the same by the pay- ment of the loan. �The object of the trust was to enable the plaintiff to make his money out of the property in case Goldsmith should prove personally unable to pay, as the resuit was, and there- fore its provisions are to ,be construed and applied with a view to that end. Now, while the trustee could not sell uniess after 30 days' notice to Goldsmith to pay, and upon 30 other days' notice of such sale, yet he was not bound to sell until he thought best, or it may be until he was required to do so by the direction of a court of equity. It was his right and duty to take possession of the property, and keep, man- age, and dispose of it so as to best conserve and promote the interest of the plaintiff, and neither Goldsmith nor the defendant, as his assignee, had any right to impede or control him in the exercise of this power, so long as he kept within the terms of the trust. �For instance, it is admitted that the trustee had a right to take possession of this property and to sell it. But certainly it could not have been contemplated by the parties that he was absolutely bound to sell in 60 days after taking posses- sion without any reference to the state of the market, or what ����