Sheldon, J.
The defendant contends that the trial judge on all the evidence should have entered judgment in his favor. He contends that his contract with the plaintiff was for goods of the specified weight of four and a half yards to the pound, with no greater variation than one of five points, or five hundredths of a yard, to the pound in any case; and that the plaintiff did not deliver to him such goods, but that the goods which it did deliver to him varied more than five points from the specified weight, being sometimes lighter and sometimes heavier; and that this failure to deliver the goods agreed upon entitled him to rescind his purchase and debars the plaintiff from recovery in an action like this, brought directly upon the contract and without any allegation that the defendant has waived any of the stipulations thereof. He also contends that there is no sufficient evidence that the goods sued for have been either delivered or accepted by him.
The plaintiff’s contention is that by the agreement made between the parties on January 10, 1908, a settlement of the disputes which had arisen between them was reached; that by the terms of this agreement, considered with reference to the existing situation, the defendant abandoned the objections which he had *430made to the goods that had been delivered to him and agreed to pay for these goods and for those which, though invoiced to him, had not yet been actually delivered, at the end of an extended term of credit, and to purchase the additional goods which were mentioned in the memorandum of the agreement, and which were to be of a width, weave and weight substantially the same as those already delivered or invoiced, about which the former disputes had arisen. And the plaintiff contends that it has delivered these goods, that the term of credit has expired, and that it is entitled to recover the agreed price. There was evidence in support of these contentions, such as would warrant a finding in favor of the plaintiff. It still remains true, of course, as it was correctly ruled at the trial, that the plaintiff, having sued upon a special contract and averred performance on its part, must prove such performance, that is, must prove that it has delivered to the defendant goods of the specified width, weave and weight, and cannot base a recovery upon the ground that the defendant has waived any of these requirements, or that he has accepted, with or without complaint, goods which fell short of these requirements. Allen v. Burns, 201 Mass. 74" court="Mass." date_filed="1909-02-24" href="https://app.midpage.ai/document/allen-v-burns-6430531?utm_source=webapp" opinion_id="6430531">201 Mass. 74. Palmer v. Sawyer, 114 Mass. 1" court="Mass." date_filed="1873-09-15" href="https://app.midpage.ai/document/palmer-v-sawyer-6417471?utm_source=webapp" opinion_id="6417471">114 Mass. 1,13. Colt v. Miller, 10 Cush. 49. Pomroy v. Gold, 2 Met. 500" court="Ky. Ct. App." date_filed="1859-01-10" href="https://app.midpage.ai/document/board-v-helm-7129824?utm_source=webapp" opinion_id="7129824">2 Met. 500, 502. Evidence of the previous transactions and negotiations between the plaintiff and the defendant was competent to put the trial judge into the situation of the parties and thus enable him to construe correctly the language which they used and determine rightly their real intent. Smith v. Vose & Sons Piano Co. 194 Mass. 193" court="Mass." date_filed="1907-02-27" href="https://app.midpage.ai/document/smith-v-vose--sons-piano-co-6429714?utm_source=webapp" opinion_id="6429714">194 Mass. 193, 200, and cases cited. Merriam v. United States, 107 U.S. 437" court="SCOTUS" date_filed="1883-04-18" href="https://app.midpage.ai/document/merriam-v-united-states-90778?utm_source=webapp" opinion_id="90778">107 U. S. 437. This evidence, as to which there was no dispute since it consisted entirely of written instruments, made it clear that, although there was no warranty of the quality of the cloth, yet the description of the cloth as to width, weave and weight had been intended to identify the subject matter of the bargain and to constitute as to these matters a warranty of the goods to be delivered. Edgar v. Breck & Sons Corp. 172 Mass. 581" court="Mass." date_filed="1899-03-02" href="https://app.midpage.ai/document/edgar-v-joseph-breck--sons-corp-6426620?utm_source=webapp" opinion_id="6426620">172 Mass. 581. Gould v. Stein, 149 Mass. 570" court="Mass." date_filed="1889-09-04" href="https://app.midpage.ai/document/gould-v-stein-6423204?utm_source=webapp" opinion_id="6423204">149 Mass. 570. Henshaw v. Robins, 9 Met. 83. King Philip Mills v. Slater, 12 R. I. 82. Dayton v. Hooglund, 39 Ohio St. 671. Bowes v. Shand, 2 App. Cas. 455. The defendant would have been justified in rescinding the contract and refusing to accept *431the goods if in any respect they have failed to come up to this warranty. Fullam v. Wright & Colton Wire Cloth Co. 196 Mass. 474" court="Mass." date_filed="1907-11-26" href="https://app.midpage.ai/document/fullam-v-wright--colton-wire-cloth-co-6430016?utm_source=webapp" opinion_id="6430016">196 Mass. 474. Alden v. Hart, 161 Mass. 576" court="Mass." date_filed="1894-06-22" href="https://app.midpage.ai/document/alden-v-hart-6424985?utm_source=webapp" opinion_id="6424985">161 Mass. 576. Smith v. Hale, 158 Mass. 178" court="Mass." date_filed="1893-03-01" href="https://app.midpage.ai/document/smith-v-hale-6424454?utm_source=webapp" opinion_id="6424454">158 Mass. 178. Cleveland Rolling Mill v. Rhodes, 121 U.S. 255" court="SCOTUS" date_filed="1887-04-11" href="https://app.midpage.ai/document/cleveland-rolling-mill-v-rhodes-91919?utm_source=webapp" opinion_id="91919">121 U. S. 255.
But the plaintiff’s action was not brought upon the original bargain or upon any of the purchases and sales made thereunder. It was brought upon the agreement of January 10, 1908, which was made expressly as an adjustment and compromise of their respective rights. It was made upon valuable consideration and altered the situation of the parties. By its terms the defendant was to accept the goods which had been already delivered or invoiced to him, and abandon his claim that they did not come up to the old standard. This was not strictly a mere waiver of his rights under the old bargain; it was a new and independent agreement by which the rights of the parties were to be thenceforth regulated. And the additional order was for thirty-five thousand yards “of the same 40" goods.” These words upon their face purported to describe goods like those which had been previously furnished and which the defendant now agreed to accept and pay for, and not goods which should conform to the claims that either party had made previously, whether those claims had or had not been well founded. Certainly, upon the evidence of the situation of the parties and of their previous correspondence the judge was warranted in saying that this was the proper construction of the new agreement. That this was his view sufficiently appears from his finding in favor of the plaintiff, taken in connection with the rulings which he gave and those which he refused to give. And he had a right upon the evidence to find that the cloth delivered by the plaintiff to the defendant conformed to the standard fixed by the agreement, that is, that it was as to width, weave and weight of the same character as the cloth which previously had been delivered upon the defendant’s orders.
Looking in detail at the rulings refused, it is plain from what has been said that the tenth request ought not to have been given, and that a ruling that the plaintiff was entitled to recover was made rightly. The plaintiff recovered because it proved that the contract upon which it relied had been entered into, and that it had performed this contract by making the agreed *432deliveries as they were stipulated to be made. The judge was not bound to rule that the defendant’s claim made in November, 1907, as to the permissible limits of variation in weight, was incorporated into the new agreement; it may be doubted whether he would have had a right so to rule.
The fourth and fifth requests were rightly refused. They were not applicable to the facts of the case. The new agreement was not that the goods should weigh four and a half yards to the pound, but that they should be of the same kind as the goods already delivered or invoiced to the defendant, that they should not fall below the weight named more than those goods had done. The eighth request was properly refused because upon the findings which must be taken to have been made the defendant had no right of rescission.
Exceptions overruled.