Coös,
Dec. 2, 1914.
Arthur C. Harvey Co. v. Peter E. Lemieux.
Assumpsit. Trial by the court and verdict for the plaintiffs for five dollars. Transferred from the April term, 1913, of the superior court on a bill of exceptions allowed by Pike, J.
In September, 1911, the defendant ordered of the plaintiffs four iron beams of a specified length for use in the construction of a building. The plaintiffs sent beams which were two feet shorter than the order specified and were notified by the defendant that he would not accept them. The plaintiffs thereupon admitted that *592the beams were not of the length ordered and that the defendant was not bound to accept them, and also requested him to hold them for a while. A small plate which came with the beams was used by the defendant with the plaintiffs’ consent. The plaintiffs undertook to furnish beams of the required length. As they did not do so in a reasonable time, the defendant cancelled the order, brought an action against the plaintiffs for damages caused by their breach of contract, and attached the beams. That suit is still pending. The verdict was for the plate above mentioned.
The plaintiffs excepted to the verdict found for them on the ground that it was too small, and also to the refusal of the court to find a verdict for the value of the beams.
Ovide J. Coulombe (by brief and orally), for the plaintiffs.
Matthew J. Ryan, for the defendant.
Walker, J.
As the beams did not conform to the specifications in a material respect, the defendant was justified in refusing to accept them; and as the plaintiffs, upon notice from the defendant that the beams were too short, admitted the defendant was not bound to accept them and requested him to hold them, it is too clear for argument that they remained the property of the plaintiffs, and-as such they were subject to attachment. It follows that the verdict limiting the plaintiffs’ damages to five dollars, the value of the plate which the defendant used with the plaintiffs’ consent, is amply supported by the facts.
Exception overruled.
All concurred.