The opinion of the Court was delivered by
Rogers, J.This suit is brought to enforce the performance of a contract.. The defendant, as the plaintiff alleges, failed to deliver, according to the articles, sixty thousand feet of white pine boards within a reasonable time, and also fifteen thousand feet of lumber in each and every year. The defendant alleges that he has performed his contract according to its true intent and meaning; but the parties differ as to the construction of the agreement, and this is the first question to be decided. The defendant contends that the delivery of the sixty thousand feet of boards is independent of the contract for the sale of the mill and ten acres; but the plaintiff insists, on the other hand, that it is an entire contract, and that the delivery of the sixty thousand feet of boards, and (he payment of the 525 dollars, in the manner specified, is the consideration for the conveyance of the mill and ten acres, and the privileges to cut lumber as granted to the defendant. We are of opinion the contract is entire. Platt covenants to deliver to Carmalt sixty thousand feet of white pine boards, and also to pay the sum of 525 dollars in lumber, at the customary prices, with interest, &c., at the rate of fifteen thousand feet in each and every year, until the whole amount is paid. In consideration whereof, Carmalt agrees to convey to plaintiff the mill and ten acres of land with the right and privilege of entering and cutting and taking lumber from an adjoining tract of three hundred acres. He further agrees to pay, on the delivery of the sixty thousand feet of lumber, the sum of 300 dollars. The latter was without doubt a mutual benefit, and was so intended. It enables Platt to provide the meansof paying for the property in cash if so disposed, and further, it amounts to a sale of the timber of Carmalt, which would otherwise be unproductive. By the arrangement, Carmalt gets lumber in its *321manufactured slate worth 9 dollars per thousand, for 5 dollars; leaving a clear profit on the sale of his lumber of 4 dollars per thousand. It is very plain, that the various interpretations of the agreement (all of which it is uselesg to state) are so dependent, that the one would have not been entered into by either party without the other. They constitute one whole. In the articles, when they come to the covenant on the part of Platt, the language following is used: “ and the said Samuel Platt further agrees (that is to say, in addition to the delivery of the sixty thousand feet of boards) to pay for the saw mill, and the privileges above mentioned and set forth, the sum of 525 dollars, to be paid in lumber at the customary prices.” By the privileges above mentioned and set forth, is meant, the right which Platt acquired to enter upon, &c. the said three hundred acres belonging to Carmalt, and which adjoined the land which Carmalt agreed to convey : in the agreement no time is fixed for the delivery of the boards ; but the defendant is not bound to deliver them immediately, but he has a reasonable' time for that purpose, of which the jury must judge. It follows from this, that if the defendant has failed to perform the contract in this particular, the plaintiff is entitled to a verdict. But the plaintiff insists from this, that the defendant has altogether failed in the performance of the contract, inasmuch as the lumber which he delivered in discharge of his engagement was not of a merchantable quality. But whether it were or not is immaterial, if accepted by the plaintiff. It is very true, that he was not bound to receive cullings, or lumber which was not merchantable'; but he should have taken the objection at the time. It is too late to complain after having received it without objection. The de-^ fendant contracted to deliver seventy-five thousand feet of lumber in each and every year, until the 525 dollars were paid, at the customary prices; that the injury which will result to the plaintiff will be the prolongation of the time for the payment of the purchase money ; for he is compelled only to pay the value of the lumber according to the quality. By accepting the lumber, he waives all exception of that kind. It would be a surprise to the defendant to allow the exception now, after he has induced the defendant to believe that, in this respect at least, he has faithfully complied with his engagements.
The court permitted the defendant to give evidence of repairs and improvements to the mill, of the value of the property, and that it is enhanced in price. Why this evidence was deemed material, we are at a loss to conjecture. The point in issue is, whether the defendant has performed his contract; and whether the property is improved, or is more or less valuable, cannot affect that question. If the defendant has failed in his engagement, he acquires no equity from the improvement of the property, or its enhancement in value. The court and counsel would seem to have viewed this action as intended to rescind the contract, or toenforce a forfeiture as in the case of an estate on condition. But this is an entire mistake of the nature *322of the suit. The plaintiff retained the legal title to the premises, and the ejectment is brought as on an equitable mortgage, to compel the defendant to perform the contract by payment of the purchase money, or otherwise to comply with the stipulations of the agreement. The ejectment is in the nature of a bill in chancery, which the jury, under the direction of the court, may mould into such a shape as to do substantial justice. If the jury should believe that the defendant has performed his contract, he is entitled to a verdict; but if, on the other hand, they think he has failed in whole or in part, he may be enforced to do his duty by a conditional verdict for the plaintiff, to be released upon a compliance, &c, at a time to be fixed and ascertained by the jury. The jury should also ascertain and find specially, in what particular the defendant has failed to perform, in order that he may know what he is required to do to retain the possession of the land. It will also be the duty of the jury to consider, whether, as the defendant alleges, the parties came to a new agreement, on a different consideration, as to the delivery of the fifteen thousand feet of lumber; for if they have, the defendant is entitled to the benefit of it.
The plaintiff further complains of the rejection of Peironnett as a witness. To exclude the testimony, the defendant proved as follows: “a year ago last winter, Peironnett showed me (the witness) a contract or deed with Carmalt: Carmalt’s name was to it. It was for a lot of land surveyed to Cox, and of which Platt was then in possession. Peironnett said he was the owner of the land. That was his deed for it.” If the witness is believed, the deed embraced the land in dispute, and clearly shows an interest in Peironnett. The objection was that it was not the best evidence, and that a subpoena duces tecum should have been served on Peironnett to produce the deed. Whether Peironnett would be bound to produce a deed in such a case, I shall not inquire. To show interest in a witness, you have one of two modes. To examine the witness on his voir dire, or to show an interest by testimony aliunde. But what is the precise nature of the testimony required in the latter case, has not been directly decided. Proof of the confessions of a witness that he is interested or otherwise incompetent, will not exclude him ; but proof that the party by whom the witness is called has acknowledged or declared him to be interested is sufficient to exclude him. Pierce v. Chase, 8 Mass. Rep. 487. This principle has been also ruled in this state, although decided otherwise in other states, but upon very questionable grounds. The cases would seem to show, that the same strictness of proof is not required when the inquiry isa preliminary one for the court, as this must depend in a great measure on their sound discretion. There is but little danger in relaxing the rule on such an inquiry that the best evidence must be produced, although I admit that the court should not exclude a witness on slight grounds, as it is better in a doubtful case of interest to re*323fer the whole matter to the jury. It cannot be expected that a party, in anticipation that an interested witness will be offered, will at all times be prepared with the best evidence to show his incompetency ; hence other and inferior evidence may be sufficient to exclude a witness. Here, although the deed was not produced, nor notice to produce it given, yet its existence was proved by a person who saw it. ' For these reasons we think the point was correctly ruled ; we do not think proper to interfere on legal grounds in a case where something must be left to the discretion of the court, who are more cognizant of the circumstances than we can be.
Judgment reversed, and a venire de novo awarded.