Beck, J.
1. Contract: substantial compliance: railroad subscription. — I. The main question presented in the argument of c.ounsel relates to the sufficiency of the evidence to support the verdict. No' other question is 1. _ . discussed. lhe evidence was bnei and the disputed points are such as involve the question of the distance of the depot built by plaintiff, and its railroad at that point, from the post-office. By measurement upon a direct line, the distance from the post-office to the depot was found to be less than one mile, by the difference of a few feet. The whole of' the depot building and the main track of the road at that point, however, were not covered by this measurement. The side track of the road, however, was on the side of the depot in the direction of the post-office, thus being less than a mile distant. By geometrical demonstration, it is attempted to be shown by the counsel of plaintiff, that the main track of the road, at a point near the depot, was within the distance of one mile of the post-office. In the same way, defendant’s counsel attempts to show that it is, at no point, within that distance. We find it unnecessary to enter into an investigation of the merits of the respective counsel’s arguments upon this point. The evidence is indisputable that from" the post-office to the depot the distance is not one mile, and to a side track used by defendant for the business of the road at Charles City, it is even less. W e think the evidence shows, on the part of plaintiff, a compliance with the conditions of the instrument sued on. The road was completed and opened for business to a point within one mile of the post-office, and a suitable depot was located and built. This language is in the very terms of the condition of the contract. In our opinion, that condition has been strictly complied with. Plaintiff’s railroad is com*116pleted. and opened for business to tbe point indicated in tbe obligation of defendant, for tbe side track, which is used for the business of Charles City, is within the distance of one mile from the post-office, and the depot is built at that point. It follows that the condition of defendant’s contract has been performed.
Defendant’s counsel insist that, by measuring to 'the most distant part of the depot building, a distance greater than a mile by twenty-two and thirty-four one hundredths feet is found. In the absence of any showing that the parties intended to provide against such an inconsiderable variance, or that prejudice has or may result therefrom, we cannot regard it as an absolute failure of plaintiff to perform the condition in the obligation sued on, even were we to consider that every part of the depot building, under the contract, is required to be within a mile of the post-office. The law does not give importance to such trifling things, and, because of them, annul solemn contracts. De minimis non ourat lex.
We are of the opinion that the verdict, as to the point just considered, was clearly supported by the evidence. We recognize fully the rule, so often announced in this court, that it requires a clear case to authorize us to interfere with a ruling of the kind complained of — in fact a stronger case than will justify this court in reversing the decision of the court below in overruling a motion for a new trial. We think this case is fairly within that rule, and that the ruling of the circuit court cannot be sustained under it.
II. The circuit court, upon the trial, held that the distance from the post-office to the depot, under the contract, should be measured by a direct line. Defendant then, as now, insists that it should be by the nearest traveled route, and that the ruling of the circuit court upon this point is erroneous and, therefore, requires the order granting a new trial to be sustained. We think the view of the v circuit court, objected to by defendant, is correct. The *117instrument sued on is silent in regard to tbe manner of measurement or route to be measured. It will be presumed that tbe distance mentioned therein was intended to be upon a direct line. According to general usage, the language employed must be so understood.
III. The defendant offered to introduce certain evidence in support of the defense pleaded, that the execution of the contract was obtained by'fraud of plaintiff. The evidence was not allowed, and defendant insists that its exclusion was erroneous. The record does not advise us as to the character of this evidence, further than it was of representations made by the agent of plaintiff; what these representations were does not appear. We cannot say that they were improperly excluded, or that their introduction in evidence would not have been improper. ,
3. Instruction: error withoutprejudice. IV. The defendant asked the court to instruct the jury that, in making up their verdict, they had “ a right to consider the question of the subject-matter, as well the time and place, and character of the agreement on the part of plaintiff, and, in order for plaintiff to recover, it must show that it has performed on its part all it stipulated to do, having reference to the subject-matter and the uses and purposes for which it was intended.” This instruction was refused. We may concede that this instruction is correct, yet, we are clearly of the opinion that, had it been given, the verdict could not have been different. If, under this instruction, a verdict had been given for defendant, as we regard the case, we could not have sustained it. The refusal of this instruction is, therefore, error without prejudice.
In our opinion, the circuit court committed no error in the instructions, or other rulings, which required a new trial to be granted. The order directing the verdict to be set aside is reversed, and a judgment will be entered thereon in the court below.
Reversed.