
    [Pittsburg,
    September, 13, 1824.]
    EDGAR against BOIES.
    IN ERROR.
    Error in the trial of an immaterial part of an issue, is no cause for the reversal of a judgment.
    Where, therefore, the plaintiff was bound by articles of agreement, to tender a conveyance on a certain day, or to give security to make such a conveyance at a futuri-day, and he has done the latter, it is a fulfilment of his contract; and if the court below erroneously admit evidence to prove a tender of a deed on a day subsequent to that agreed upon, it cannot be assigned for error.
    If a day be appointed for the payment of money, or part of it, or for the doing of any other act or thing, and the day must or may happen before the thing is to be performed, which is the consideration for which the money is to be paid, or other act done, an action may be maintained for the money, or the non-performance of such other act, before the performance of the act, which was the consideration of that, for which suit is brought.
    If the defendant traverse the averment of a tender of a deed on a day different from that on which the plaintiff covenanted to make it, he cannot object to evidence in-support of such averment, on the ground that it does not show a tender at the time agreed upon.
    The admission of incompetent evidence, which can prejudice no one, cannot be be assigned for error.
    In an action for the non-delivery of a quantity of whiskey on a particular day, according to contract, the enhancement of the price of the article by the operation of excise laws passed subsequently to the contract, does not affect the quantum of damages
    In the Court of Common Pleas of Beaver county, to which this was a writ of error,, the case was thus:
    By articles of agreement dated 19th May, .1812, as appeared by the declaration, Boies the plaintiff below, sold to Edgar the defendant, .for the sum of 1,900 dollars, a tract of land, on which mills and other buildings were erected, and agreed to give him immediate possession of the mills, and every thing directly appertaining to them, as well as of a certain house on the premises, with liberty to cut timber, to repair the mills, and the dam; and further covenanted to give possession of the rest of the premises on the 1st of May, 1813, as well as to make a sufficient conveyance on or before that day, or in its stead, to give good security to make it on the 1st of May, 1815. In consideration of these covenants, the defendant covenanted to pay the said sum of 1,900 dollars in annual instalments of 200 dollars, and 500 gallons of whiskey, on the 1st of May, in each of the years 1813, 1814, 1815, and 1816, and 150 dollars, and 375 gallons of whiskey, on the 1st of May, 1817. The plaintiff averred that he had given possession according to the articles, which had been accepted by the defendant, and that on the 6th of May, 1813, he had with good security, execw 
      
      ted a bond, conditioned to convey a good title on the 1st of May, 1815, which bond was accepted by the defendant, and that on the 24th December, 1818, he had tendered a sufficient conveyance. He then assigned breaches in the covenants to pay the instalments respectively as they become due. The defendant pleaded, performance of the covenants on his part, and traversed the averment of performance of covenants on the part of the plaintiff; and op this issue the parties went to trial. The plaintiff after having given in evidence the articles of agreement, and the bond conditioned to make the title on the 1st of May, 1815, and the delivery of possession according to the articles, offered to prove that on the 24th of December, 1818, (as laid in the declaration) he had tendered a conveyance to the defendant, who made no objection to it, but did not accept it. This evidence was objected to by the counsel for the defendant, but admitted by. the court, and an exception taken to their opinion. The plaintiff then gave in evidence a patent to Walter Stewartl bearing date 28th February, 1794, and afterwards offered in evidence a deed from Walter Stewart, and wife, to Robert Morris, executed in the year 1794, and a deed from Robert Morris, and wife, to Wilson Hunt, executed in the year 1796. To the admission of these deeds, the defendant’s counsel objected, on the ground that they were not acknowledged in such a manner as to bar the dower of the respective wives of the grantors. The objection was overruled by the court, and the deeds given in evidence.
    The plaintiff, having given in evidence an article of agreement,, executed by Wilson Hunt, and James Sample, dated April 2d, 1799, and a power of attorney dated 10th April, 1801, from the said Wilson Hunt, to the said James Sample, offered to prove by the testimony of. the said James Sample, that Hunt had never objected to a contract he had made, and had received the purchase money for a certain tract of land described in a deed, which was also offered in evidence, bearing date 28th of August, 1801, giyen by the said James Sample, as attorney for Hunt, to William Ashley, and Francis Nesbit, who immediately took possession of the land under the deed. The counsel for the defendant objected to the admission of this evidence, but the court permitted it to be given, and sealed another bill of exceptions. An article of agreement dated 2d of August, 1802, between Francis Nesbit, and William Espy, was then offered by the plaintiff, objected to by the defendant, and admitted by the court, who likewise admitted a deed offered by the plaintiff, dated 20th of May, 1816, from William Espy and wife, to Robert Wiley, and a deed dated 18th December, 1818, from Robert Wiley and wife, to James Boies, notwithstanding they were objected to by the defendant’s counsel, on the ground that they were not acknowledged in such a form as to bar the right of dower.
    The plaintiff then proposed to give evidence of the price of wins-key in the years 1814, 1815, 1816, 1S17, 1818, and 1819, to which the defendant’s counsel objected, but the court permitted it to be given, and a bill of exceptions was tendered and sealed.
    After the plaintiff had closed his evidence, the defendant having previously produced the several acts of congress, laying a duty on the distillation of domestic spirits, offered evidence to prove, that the average amount of the duties so laid, was forty cents per gallon. The counsel for the pláintiff objected to the evidence, which the court refused to admit, and a bill of exceptions was tendered to their opinion.
    At the close of the trial, Wilkins, President, delivered to the jury the following
    Charge. — The first question that presents itself for your consideration is — Has the plaintiff performed his part of the agreement? Upon this question you have in evidence that the defendant received and retained possession of the estate, agreeably to the contract — that the bond with security for making the title, was executed and delivered by the plaintiff, and accepted by the defendant — that a deed in fee simple with a good warranty, was tendered in December, 1818, to the defendant. He did not take it, but made no objections to it; and offered an apology for not paying the purchase money then due; spoke of his incapacity to pay, and said he would be down in two or three weeks, and see the plaintiff, and endeavour to make some arrangement upon the subject. The deed not having been made or tendered upon the day mentioned' in the article of agreement, does not of itself avoid the contract. This circumstance alone, does not preclude the plaintiff from his right to recover. The strict rule of law might defeat the right of action; but equity interposes — and if it is conscientious that the bargain should be performed, considers the act as if it was done at the time itwas contracted to have been done — particularly so in the present instance — where the estate was improved, and productive, and the defendant at this moment enjoys the possession, and reaps the fruits of the bargain. He never complained that the deed was not made.on the day ; and never indicated a wish to avoid the contract on account of that circumstance. Upon this point, therefore, I come to this conclusion, that although the time of making the deed is a material part of the contract, yet in the state of the pleadings, and under the circumstances of this case, the delay in tendex--. ing the deed, does not defeat the action. I think it unnecessary, (unless the plaintiff’s counsel should insist upon it) to incumber the case witli the consideration of the point he has made, that after acceptance by the defendant of the bond given by the plaintiff for making the title, the covenant in the article for making the deed, was fulfilled, and was no longer a precedent or dependant covenant, and therefore it makes no difference whether the deed was, or was not, tendered previous to the institution of this suit. — The seeond and remaining question for you to decide is — What amount of damages is the plaintiff entitled to recover? It is admitted that out of the 1,900 dollars, the defendant has paid the plaintiff 1,0'35 dollars, and 37 cents. And upon this last question, the defendant’s counsel makes two points, upon which he claims a considerable reduction in favour of his client — 1st That between 28 and 29 acres of the land sold, are not covered by the plaintiff’s title, and that he has been obliged to purchase this piece from one Johnston, who held the better right. That he bought No. 174, an adjoining donation tract from Johnston, there is no doubt; but that Johnston’s right to this piece of land was'better than the plaintiff’s, I cannot for a moment believe; and if you view the testimony in the light I do, you will probably be of the same opinion. It will be for you to decide — I do not mean at all “ to withdraw the facts from your consideration.,” - It turns out simply one of those cases in two adjoining donation surveys, where the numbers of the survey differ from the numbered corners, and the lines actually marked upon the ground. In the case of such a collision, I am asked to charge you as to the law — The law is settled upon this point — wisely and conveniently settled. The return of survey is prima facie evidence of the boundaries of the tract; but the corner and lines actually run and marked upon the ground, are the true survey. It is very true that the mistake of a surveyor may be examined by parol proof. And if mistakes have occurred by which an error has been made in the' survey, and the return of survey does not agree with the numbered corners, and lies actually marked on the ground, the latter are the true lines and must prevail over the former. Were this not the rule, great uncertainty and ruinous confusion would prevail over their districts. ■ That there may be an excess in one of these adjoining surveys, and a deficiency in the other, will make no difference, nor prevent the rule from bearing on this case. (Here the president recapitulated to the jury, the facts in evidence as to the locality of the numbered corner, and thd lines actually run upon the ground.) If then, Gentlemen, you should believe that the numbered corner, and the lines actually maiked, embrace the land in the plaintiff’s deed, and include these 28 or 29 acres in the survey, No. 86, this point, made to reduce the damages, cannot avail the defendant.
    The Act of Assembly of 1817 does not substantially change the rule of law laid down to you. It rather comports with, and reiterates the decisions of the Supreme Court of the state. Upon my construction of this law I need not dwell, because the defendant’s counsel admits that he coincides with me in opinion. The second point is, that the defendant ought not to be liable in damages for the increase in the price of the whiskey; that the increase, in consequence of the excise laws, ought to be thrown off, and the whiskey reduced to about one half the price it was at the time of delivery. By this article of agreement, the defendant covenant ¡ to deliver, on particular days, a certain quantity of whiskey7. If the whiskey rose in price, still he ought to have delivered it. If it had greatly fallen in value, the plaintiff would have been obliged to have received it. He could not have said to the defendant, “No, I w’ill not take it — you must pay the money, because the article does not stand at the price it did when we made our contract.” The chance of an increase or fall in the price of grain is mutual. The plaintififiran the risk of losing by the fall in the price; he is entitled to the advantage of the accidental rise. The general rule, or measure, therefore, for you to assess the damages by, is the price of the whiskey at the time and place, when and where it was to have been delivered. I cannot conceive that the Acts of Congress, of the years 1813 and 1814, laying duties upon licenses to distillers of spirituous liquors, can vary7 this general rule of assessing damages in a case like the present. The excise may have been the cause of the increase in the price of whiskey in the ymars spoken of, but cannot vary the nature of the contract between the parties. This national measure, necessary to increase the publiek revenues, and promote the general welfare, did not render the contract chimerical, or its performance impossible. It no way interfered with the bargain; it merely happened, mediately, to affect the price of the article contracted to be delivered. It was an accidental circumstance, like many others of which the parties ran the risk; and which might be'a gain to one, and a loss to the other. Reverse the case. Suppose the contract had been made during the excise, and when the price of whiskey was high, and before the time of delivery, the same had been repealed, and the price had fallen to a mere trifle; would not Edgar have been entitled to the benefit of its repeal, and would not Boies have been obliged to take the whiskey, and put up with the loss? The present may be a hard case upon Edgar. It is bad luck. As he made his bed, so he must lie in it. It is a man’s duty to take care, and look forward, when he makes a contract, to be performed at a distant day; because his bargain must be performed, or the damages which the other party has suffered, must be paid. Had Edgar the whiskey made, and ready to deliver? If he had, the presumption is, he sold it at the advanced price, and was thereby benefited. Instead of giving it to Boies, he may have got 75 or 100 cents per gallon for the whiskey,- in consequence of the excise. As to the interest, the general rule is this, that, if the vendor receives and enjoys the possession, reaps the use and benefit of the improved estate, he ought to pay the interest on the instalments, from the time of making default. The use of the improved estate is a compensation .for the interest. Edgar might have tendered the money and whiskey, and demanded the title. It is admitted he did not do ei-' ther. It is testified, that when the deed was tendered, he made no complaint or objections. But I would say, that, if the purchaser had been vexatiously delayed in getting his title, or has, for the want of it, lost an opportunity of making an advantageous sale, or otherwise suffered special damage, that these things should operate in his favour, and ought to be considered by a jury in assessing the damages, and determining the justice of his paying interest.
    In this court, in addition to the errors assigned in the opinion of the court below in the admission and rejection of testimony, nine specific exceptions were taken to the charge delivered to the jury.
    
      iS/ialer argued the cause for the plaintiff in error, and
    
      Forward and Campbell, for the defendant in error.
   Gibson, J.

delivered the opinion of the court.

It is at once evident, that the averment of having tendered a conveyance on the 24th December, 1818, or any other day subsequent to the 1st of May, 1813, was immaterial, and one which the plaintiff was not bound to prove. By the articles, he was bound in the alternative to make the conveyance on the 1st of May, 1813, or, as an equivalent, to give security to make it on the 1st of May, 1815. He chose the latter, and fulfilled his covenant by giving the security. As far then as respected his title to sue on the articles, he was under no necessity to execute a conveyance at all; the defendant had taken security for the conveyance, and was bound to rely on it. This, therefore, was an immaterial part of the issue, and an error in the trial of it could not prejudice the defendant. But again; take it that the plaintiff was bound by the articles to make the conveyance-on 1st of May, 1815, still, performance of that covenant would not be a condition precedent. If there is any certain rule to be extracted from the critical distinctions, and jarring decisions in the eases on this head, it is, that if a day be appointed for the payment of money, or part of it, or for the doing of any other act or thing, and the day must or may happeli before the thing which is the consideration of the money or other act, is to be performed, an action may be brought for the money, or for not doing such other act, before performance of the act which was the consideration of that for which the suit is brought; because, from the very nature of the thing, it is apparent that the party has relied on his remedy,’without intending to make the performance by the other party a condition precedent. Now, 400 dollars of the purchase-money were to be paid, and 1000 gallons of the whiskey to be delivered before the 1st of May, 1815, when it is said, the plaintiff was bound by his covenant to make the title. So that the averment of having tendered the conveyance in 181S, would still have been immaterial; and the same consequences would still have resulted; namely, that an error, in the trial of a part of the issue, which is altogether immaterial, and which therefore can prejudice no one, will not be used as an instrument of reversal, there being another and material averment in the declaration, which is sufficient to determine the merits of the cause. But, independent of all this, the plaintiff had averred a tender in 1818, and the defendant had traversed it; and it thus actually formed part of the issue which the jury were empanelled to try. I, therefore, cannot see on what ground the defendant could object to evidence of a fact which he himself had put in issue.

Most of these remarks are equally applicable to the exceptions taken to the evidence given by the plaintiff, in deducing the title from Walter Stewart, the grantee of the commonwealth, down to the plaintiff himself. These exceptions all rest on the ground, either that the acknowledgment of the intermediate conveyances is insufficient to bar the dower of the wives of the respective grantors, or that the deeds pass only an equitable title, or that, not having been recorded, they are binding only between the original parties, and afford no security against subsequent purchasers without notice. Granting, for the sake of argument, that all this is true in the abstract, still, this part of the inquiry being altogether immaterial, I cannot see how the admission of incompetent evidence, which can prejudice no one, can be successfully assigned tor' error here. But, even if the averment had been material, still the evidence, as far as it went, was directly in support of the issue. Is it an objection to the competency of evidence, that it does not fully make out the fact in proof of which it is offered ? Where evidence is altogether irrelevant, no one will doubt that it should be promptly rejected ; but I abhor a practice which has grown common, of attempting to have every question of law that can be raised in the cause decided on exceptions to evidence. This excites counsel to finesse, and to a perpetual effort to trick the court into some trivial error, as a means of getting the judgment reversed, if the verdict should be adverse. - The rules of evidence, when fairly and reasonably applied, are safe guides to the attainment of truth, but an overstrained nicety in their application, would often be the means of setting: aside judgments, where substantial justice has been done; of exhausting the patience and the purses of suitors thus foiled in the pursuit of fair and conscionable demands; and of rendering the supervising power of this court a public grievance, instead of a public good.

After this, the plaintiff, with a view to the question of damages, offered evidence of the current price of whiskey during the years 1814,1815,1816, and 1817, which was objected to, on the ground that nothing was demandable till after a tender of a conveyance, and consequently, that the evidence ought to have been directed to the current pi’ice in the year 1S18» What has already been said is an answer to this. A tender of a conveyance under the circumetaoces was not a condition precedent; and the whiskey was demandable in all those years to which the evidence was directed. But it is said, the price was fixed by the stipulation of the parties. To this it is but necessary to answer, that the point was well determined, and for satisfactory reasons, which it is unnecessary to repeat, in Meason v. Phillips, Addison’s Rep. 346, a case which I take to be, in ¿11 respects, sound law.

We come to the exceptions to the charge, which are, in substance, but two. 1. In directing the jury that the plaintiff had performed his part of the agreement; and, 2. That the enhancement of the priee of whiskey, by the operation of the excise laws, ought not to affect the quantum of the damages.

What has already been said removes all difficulty with respect to the first exception. But, even if the giving of security, to make the title at a subsequent day, were not a- full performance of the plaintiff’s covenant, it is by no means clear, that he might not maintain this action, on proof of the tender in 1818. The defendant could not refuse to pay the purchase-money, and hold the land. In a case like this, where the contract has been partly executed by delivery of possession, what would a chancellor do? It is a case in which the delay would admit of compensation, and in which tíme is not thn essence of the contract; and, as the plaintiff has adapted his declaration to the true state of the facts,'according to the decision in Jordan v. Cooper, 3 Serg. & Rawle, 564, I can see no obstruction to a recovery, on due proof of a tender in 1818. But the plaintiff having fulfilled his covenant, by giving security to make the title at the day mentioned in the articles, might recover, without any tender of a conveyance at all; and, therefore, if the judge had even been in error as to the ground on which he put this pai’t of the cause, it would have been an error which ought not to affect the judgment.

The remaining point is almost too plain to justify a remark. The defendant was bound to deliver a certain quantity of whiskey on a particular day, and although the current priee of the article is to be the measure of damages, it is contended, that as the price was enhanced by the operation of revenue laws, passed subsequently to the contract, the difference, which is the amount of the duty, ought to be deducted. What has the plaintiff to do with that? It was the defendant’s business to furnish the articles on the best terms for. himself that he could; and if he had actually furnished it, as he was bound to do, he would have had to pay the amount of the duty to the manufacturer, or to government, in case he manufactured it himself; and thus the plaintiff might have turned the article into cash, at the market priee, and duty free. Shall the defendant gain, an advantage by having violated his contract? The accidental rise or fall of t^e article, whether from political regulations, or physical causes, was a risk, to which each of the parties was exposed, and the event having turned out against the defendant, he must bear the loss.

Other exceptions have been made to the charge, but as there is nothing in them, and as indeed they have not been seriously insisted on, I shall dismiss the cause without further remark.

Judgment affirmed.

Tilghman, C. J. not having heard the argument, gave no opinion.)  