The only exception in this case is the following : “ At the close of the testimony the defendants asked the court to rule that, upon the whole testimony, the plaintiff agreed to build a shank machine which would do the work; namely, cut shanks such as were shown and left with the plaintiff as hereinbefore stated, and that upon the whole testimony the plaintiff was not entitled to recover. The court declined to rule as requested, and found for the plaintiff for the amount stated in the auditor’s report.”
All the material testimony is recited in the exceptions, and it is plain that the court could properly find from the evidence that the plaintiff never agreed “ to build a shank machine which would do the work,” but that the agreement was that he would build a machine according to the drawings made by his draughtsman, of which the defendants had approved. This agreement the plaintiff had performed. See Cunningham v. Hall, 4 Allen, 268.
Exceptions overruled.