| Pa. | Jan 2, 1883
delivered the opinion of the court, January 2d 1883.
We cannot see that the plaintiff in error has much if any reason to complain of the charge or rulings of the learned judge of the court below. The first assignment is founded upon a mistake, perhaps of the stenographer, or if made by the judge, was a mere lapsus linguae which could not have misled the jury. The attention of that body had previously been called to the fact that the Erie & Pittsburgh Railroad Company was not incorporated until the 1st of April 1858, and that its organization must necessarily have occurred after that time. It was also instructed that if the alleged contract was made in 1857, the defendants were not bound by it. Moreover in the preceding sentence, and immediately connected with that part of the charge which forms the subject of the exception under discussion, the learned judge again tells the jury, that the question whether the contract was made in 1857 or 1858 was an important element in the case, for if made in 1857 it must have been made with some other corporation than the Erie & Pittsburgh Company. How then could he say in the succeeding sentence,
But how could a slip of this kind injure the defendant, when the jury knew that it had no existence in 1857, and were most positively instructed, and the instruction repeated, that if that were the year of the contract the Erie and Pittsburgh Company could not be bound by it? For an error so harmless and insignificant we cannot agree to reverse a case otherwise well and fairly ruled and submitted to the jury.
The only other assignment which we think worthy of notice is that which excepts to the judge’s ruling on the admission of evidence to prove the damages resulting from a breach of the contract. The value of this farm with the performance of the contract, as compared with its value without such performance, was certainly not a proper measure for the damages suffered by the plaintiff, and this will become obvious if we reflect that such a rule must contract or expand according to the value of, or the number of acres contained in, the farm, when, in fact, we are dealing alone with the value and quantity of the fence. Whether the land was good or bad, or whether the farm was great or small, the question, and the only question, was, what would be the cost of the maintenance perpetually of two hundred and eighty rods of fence? But we cannot say that this error did the defendant any harm, and this for two reasons; First, the difference in the value of the farm under the contract and without it, would simply be the value of the fence, and on no other ground could the witnesses have put their estimates. Second, the court corrected its own error by instructing the jury that, in assessing the damages, they must confine themselves to the annual cost of keeping and maintaining the fence in good repair. It seems to us very clear that the mere admission of evidence relating to the value of the land could do the defendant no harm. In many cases the admission of irrelevant testimony, even though afterwards ruled out, may do a serious injury, for it maybe so interwoven with the case that it may be impossible to say how it affected the minds of the jury. But such is not the present case; two distinct methods of ascertaining the plaintiff’s damages are submitted to the court; the one the value of the land, the other the cost of fencing, and the jury are instructed that they are to be confined to the latter method. Such being the case, we cannot see how evidence of the value of the land could, in the least degree, affect the verdict.
The judgment is affirmed.