None of the positions taken in the argument for the defendants can be maintained.
1. The bill of exceptions expressly states that no exception was taken by the defendants to the instruction that there was no evidence of a sale of the goods by the plaintiffs to Dr. Learned personally.
2. The question of the place at which the defendants might deliver the goods to the consignee was submitted to the jury under apt and sufficient instructions; and it was rightly ruled that the mere fact that the consignee guaranteed the payment of the rent of the building, and was thus compelled to pay it, would not of itself justify the defendants in delivering the goods there.
3. There was no variance. The allegation that the defendants agreed to deliver to E. T. Learned was supported by evidence that they clearly understood him to be the person for whom the goods were intended, although there was an inaccuracy in his name as marked on the goods.
4. The plaintiffs might properly join a count in contract for non-delivery, and a count in tort for misdelivery of the goods, if in doubt which was the legal effect of the facts upon which they relied to maintain their action. Gen. Sts. c. 129, § 2, cl. 5. Sullivan v. Fitzgerald, 12 Allen, 482. Atwater v. Clancy, 107 Mass. 369. Exceptions overruled.