delivered the opinion of the Court:
In this case, the only points presented for our consideration, arise out of the instruction prayed for by the plaintiff, on the trial of the cause, which was refused to be given, and the instruction given by the Circuit Court.
Under the issues joined in the cause, it is conceived that the instruction asked was not pertinent to those issues.
The only questions for the jury to determine, were the performance of the covenants, or an excuse for their non-performance, by either party, and the consequences resulting therefrom.
This was matter of evidence. The jury were properly instructed, that what was obligatory for the parties to do under the covenants, was to be determined by the covenants themselves, and the testimony given.
We can perceive no error in this instruction; nor do we perceive any injury arising from the refusal to give the abstract instruction asked by the plaintiff. Indeed, there is nothing appearing in the case, for none of the evidence is preserved, which shows, even in a remote degree, the applicability of the instruction asked. We are of opinion that the judgment should be affirmed, with costs.
Judgment affirmed.