Under the terms of the original contract S. T. Graves, the plaintiff’s intestate, was to he paid for his services by O. H. Bexford and W. A. Bexford; but the plaintiff prosecutes this suit against the executrix of William O’Connor on the theory that the Bexfords, S. T. Graves, and William O’Connor mutually agreed that the lands should be conveyed to O’Connor and that he should become liable to the plaintiff’s intestate in accordance with the terms of the-Bexford contract. The plaintiff alleged and offered evidence tending to show that O’Connor agreed to pay the plaintiff the compensation fixed by the Bexford contract “upon the sale of the lands so conveyed to him by the said C. II. and W. A. Bexford.” In the complaint there is an allegation of an implied agreement between the plaintiff and William O’Connor that the latter would endeavor to effect a sale within a reasonable time; but this may be treated as an inference of law rather than an allegation of fact. William O’Connor died in August, 1926, never having made a sale of the property. Nor has it since been sold. It appears from the answer to the fourth issue that the executrix and the heirs of William O’Connor gave an option; but this, we apprehend, refers to the agreement to convey to the Bexfords or their representatives upon payment of $650,000 on or before 1 August, 1930. At any rate, an option is not a sale. The action was commenced 14 November, 1929.
It is in the light of these facts that we must consider the fifth issue and the instruction upon which it was answered by the jury. So considered, the instruction, the issue, and the answer, in our opinion do not embody an accurate statement of the controlling principle. The form of the issue makes the mere lapse of time the directing and conclusive element. S. T. Graves was to be paid for his services upon a sale of all or any part of the lands in question. The contract specified *235no period within wbicb the sale should be made. It is true that when no time is specified for doing a thing or executing an agreement the doctrine of reasonable time applies. Michael v. Foil, 100 N. C., 178, 191; Winders v. Hill, 141 N. C., 694, 704. When the act to be done is entirely within the power of the obligor, the party to be charged, the question whether the act is done within a reasonable time is ordinarily a matter of law to be adjudged by the court. Waddell v. Reddick, 24 N. C., 424. Instances of this kind fall within the class of cases in which the time taken is so clearly reasonable or unreasonable as to leave no room for doubt. The principle was applied in Murray v. Smith, 8 N. C., 41, it appearing that the plaintiff had failed to bring suit within a reasonable time. But there are cases in which the question must be left to the jury. In Holden v. Royall, 169 N. C., 676, the Court said that “where the question of reasonable time is a'debatable one, it must be referred to the jury for decision,” citing Claus v. Lee, 140 N. C., 552 and Blalock v. Clark, 137 N. C., 140.
In the case before us the question of reasonable time was submitted to the jury; but other elements are involved in the controversy on this point. The sale of the several tracts of land was not dependent exclusively upon the will of William O’Connor. There must have been a buyer. O’Connor may have desired to sell the property and may have made a reasonable effort to do so, but without success. He may have had an opportunity to sell and may have declined to do so, reasonably or arbitrarily. To what extent these factors influenced his conduct is not determined by the verdict. The issue should be framed in such way as to enable the jury to find from the evidence whether William O’Connor arbitrarily or unreasonably refused to sell the lands or whether by the exercise of due diligence he could have made a sale thereof at a fair and reasonable price.
With respect to “reasonable time” his Honor gave the jury this instruction: “While the contract itself says ‘when the lands are sold,’ yet there are exceptions to that general rule, and that in order to keep it from being a perpetuity, or to prevent the parties from never selling and thereby defeating the plaintiff’s claim, -the law says a reasonable time, and the court charges you that it seems to be the law and, as far as this case is concerned, is the law, and the question for you to determine is whether or not the plaintiff has satisfied you by the greater weight of the evidence that a reasonable time has elapsed within which said lands could and should have been sold.”
If we concede the contention that William O’Connor could have sold the lands, we see in the instruction no rule for guiding the jury in finding under what circumstances he should have made the sale. While he .was not required to dispose of his property at a sacrifice, he had *236no right to defeat the plaintiff’s claim by arbitrarily refusing to sell. The question is whether by the exercise of due diligence he could have complied with his contract and have reasonably protected his own interests.
The instruction is defective in one other respect. There is evidence tending to show that William O’Connor became liable on the contract in 1916; but the jury was permitted to consider as against him the time elapsing since 1908. It is true that the recital of the evidence on this point was given as contentions; but it was given as the contentions of the plaintiff. The error consists in a failure to explain the law if the facts should be found by the jury as outlined in the contentions. The jury may have found, according to the instruction, that O’Connor was liable on the contract from the date of its execution by the Rexfords. The defendant is entitled to a
New trial.