¶1The only point necessary for this court to examine, consists 'in the giving and refusing instructions by the court below. These instructions are embodied in the above statement. The one asked for, by the defendants below and which was refused by the court, in the wools as asked, but which was given with but a small additional alteration,'and the one which the court gave on behalf of the plaintiff below.
¶2The instruction given by the court, is in the following words : If the jury believe from the evidence, that Skidmore made it a condition with Moffitt before he would bargain with him for the use of the mill, that Moffitt should satisfy the claim of the bank, so that the bank would release its claim, and that Moffitt did not do it, as agreed [and that in consequence of such failure, Skid-more quit the premises], then the most that the said Moffitt can claim of the defendants, is for the time they used the mill, and if the jury find this greater, than the defendants have paid, their verdict should be for the excess; if equal .only or less, then their verdict should be for the defendants.
¶3The defendants asked this instruction without the words above inclosed in brackets, which the court refused in that form, but gave as above set forth. This is the chief ground of complaint, by the plantiffs in error. The testimony •of Skidmore expressly states, that in consequence of Moffift’s failing to satisfy ■the bank, he closed the mill and quit the premises. The instruction therefore ■brought the truth of this statement directly before the jury — suppose such had ibeen the condition of this letting, and that Moffitt had failed to pay the bank, .but yet the defendants continued to occupy the mill until the expiration of the .six months, and after this, that Moffitt had fully paid the bank, and the defendants never had been called on for the money by the bank, can they in good ■ conscience set up Moffitt’s failure to satisfy the bank, during their lease, which failure caused them no inconvenience, no injury, as a valid defense to the .claim of Moffitt against them for their rent?
¶4I find no fault, witli the instruction as given by the court; and indeed the ■difference between the one asked for, and the one given, is so technical, that •.the jury may not have been fully aware of it. The other instruction is merely •,the converse of the one given. I am satisfied that these instructions fairly put the merits of this controversy before the jury and they having found their verdict thereon, the court below committed no error in refusing to set the same aside and grant a new trial. The judgment of the court below is therefore affirmed.