¶1Suit by Blake against Hedges upon a written instrument reading thus:
¶2“ Terre Haute, October 4,1856. I do hereby certify that I have promised to deliver, on the bank of the canal, within six miles of this place, two hundred and fifty cords of good, merchantable wood, to Joseph H. Blake; and I hereby acknowledge the receipt of fifty dollars (50) on said wood. The balance to be paid when wood received by said Blake, all at the rate of one dollar and seventy-five cents per cord. The wood is to be on the bank within three weeks from this time. Simeon Hedges.”
¶3The complaint is composed of two paragraphs; one for damages for failure to deliver the wood; the other to recover back the 50 dollars paid.
¶4The complaint avers that the plaintiff has always been ready and willing to receive and pay for the wood according to the contract.
¶5No point is made in the case as to who had the election of designating the point on the canal at which the wood was to be delivered.
¶6The defendant answered, that he did, within three weeká, deliver upon the bank of the canal, six miles from Terre Haute, two hundred and fifty cords of good, merchantable wood, and that the plaintiff failed to pay for the same, wherefore he claims judgment for 375 dollars, the balance due for the wood.
¶7He further answers alleging the delivery of the wood according to contract, and the refusal of the plaintiff to receive the same.
¶8*568The plaintiff replied in denial of the answers.
¶9The cause was tried by a jury. The Court gave the opening and close to the defendant; but it does not appear that the plaintiff excepted at the time. Verdict and judgment for the defendant.
¶10The evidence is all upon the record. It shows that Hedges delivered the quantity of wood within the time, and that Blake refused to receive it because of its inferior quality. He said it was not merchantable.
¶11The evidence on this latter point, that is, the quality of the wood, is conflicting.
¶12The Court instructed the jury that “the term good, merchantable wood, only means that the whole lot of wood taken together should be such as is generally sold in the market, and not that every stick should be of the best quality.”
¶13We think, as applied to the evidence in the case, in connection with the contract, this instruction expressed the fair, legal import of the agreement.
¶14The jury, by finding for the defendant, indirectly found that he had complied with the contract on his part, and that he had not consented to its rescission. We do not think the evidence establishes a rescission. It does not appear that the defendant has sold the wood delivered under the contract to any third person, or in any way appropriated it to his own use; nor that he has agreed otherwise to a rescission. See Patterson v. Coats, 8 Blackf. 500.
¶15If the contract had not been rescinded, and the defendant was not in fault, the plaintiff could not recover back the 50 dollars he had advanced on the wood.
¶16Nor do we decide now that the answer of the defendant was sufficient to enable him, in this action, to recover the balance of the price of the wood; because, to have been so, it may have been necessary that it should show that he delivered the wood according to the contract, and that he kept it delivered, so far as he was concerned, up to the time of the suit in which he seeks to recover for it. He does not show, in his answer, that he set the wood apart upon the canal, and abandoned it to the plaintiff in this suit. It *569was not necessary for him to do this to defend against the plaintiff’s suit. Perhaps it was necessary for him to do this, in order to maintain a suit for the recovery of the price of the wood, on his part, against the plaintiff. See Johnson v. Baird, 3 Blackf. 153, 182.
¶17The Court instructed the jury that, if the plaintiff was •unable or unwilling to pay for the wood at the time specified, it excused the defendant from the delivery.
¶18Of this instruction we will only say, it was entirely irrelevant to the case as made by the evidence, and could not have influenced its decision; because the evidence is clear that the wood was all delivered upon the contract, and there is no evidence that the plaintiff was not able and willing to pay. The only matter of dispute was the quality of the wood delivered. Where the evidence in the cause is upon the record, it may control the judgment without regard to irrelevant instructions.
¶19The judgment is affirmed with costs.