The opinion of the court was delivered by
Ross, J.I. The disallowance by the jury of the plaintiff’s charge for services, renders the exceptions taken by the defendant in regard to that item, immaterial. However erroneous may have been the rulings of the County Court in regard to that item, the defendant has no occasion to complain, as he has suffered no detriment from them. This court never reverses a judgment because of errors in the proceedings in the County Court which have in no wise harmed the excepting party. This disposes of several of the exceptions which the defendant’s counsel have urged upon our consideration.
II. In disposing of the other exceptions in regard to the note, we have no occasion to controvert the position .'~ged by the defendant’s counsel, that the note in suit, and the contract of November 6, 1867, are to be construed together, as dependant, separate parts of the same contract. The note was executed at the same time, and in compliance with the provisions of the contract. If the plaintiff had succeeded in annulling the contract, the note would have fallen with it. The difficulty with the defendant’s position is, that he did not yield to the claim made by the plaintiff to have the contract set aside, but insisted on its validity and fulfillment. Both in the suit at law and in chancery, he has succeeded in establishing the validity of that contract. Having compelled the performance of the contract by the plaintiff, he cannot *258now excuse himself from fulfilling, by alleging her former unwillingness to abide the contract. By resisting her claim to have the contract annulled, he has constantly proclaimed that the contract was valid, and that he was ready to perform his part of it. He cannot now be allowed to set up the suit at law and in chancery, in defence of the contract or his fulfillment of it. His resistance to those suits was a constant tender of his readiness to perform the contract, and a waiver of a demand for its performance from the plaintiff, if any such demand had ever been necessary. The note, by its terms, bore interest. His claim in the former suits, that the contract was valid, and to be performed by him, was tantamount to alleging that lie was ready and willing to pay the note according to its terms and the terms of the contract. So long as he treated the note and contract as valid, if he would have excused himself from the payment of interest, he should have tendered to the plaintiff the money due on the note. If she had refused to accept it, and if the tender had been kept good, the loss of interest thereafter would have fallen on the plaintiff.
The defendant claims that he should have been allowed to introduce the records of the suits at law and in chancery, to lay the foundation for damages claimed to have resulted to him from those suits. If the plaintiff had probable cause for instituting those suits, and honestly prosecuted them, the taxable costs are the measure of the damages recoverable by him resulting from their prosecution. If the plaintiff instituted those suits maliciously, without probable cause, the defendant’s remedy for damages resulting therefrom is by an action for malicious prosecution. Such damages did not arise directly out of the contract, or from a breach of it by the .plaintiff, but from the malicious prosecution of unfounded suits. Hence such damages could not be shown in reduction of, or recoupment from, the amount due on the note, nor in sot-off thereto under the defendant’s plea. In whatover light we have been able to view the proceedings in those suits, we have found no ground on which they were admissible in evidence for the defendant.
III. The defendant’s request to the court to charge in reference to the plaintiff’s liability to him for her board, was substan*259tially complied with. We have not discovered any error in the charge on that item. Judging alone from the testimony disclosed in the exceptions, the court may have given more prominence to some portions of the evidence than we should have done. Yet we have not discovered that the court stated any unsound proposition of law as applicable to this evidence. So long as the court does not withdraw the testimony from the consideration of the jury, and states no erroneous principle of law to govern the jury in considering the same, this court will not revise the charge of the County Court, or reverse its judgment. What, from the exceptions, might appear to this court undue prominence in the charge, in regard to a particular class of testimony, might be just what the case called for, and what this court would have given, had it seen the witnesses and been present at the trial.
Judgment affirmed.