The judge was quite right in deciding that the question was not admissible in the form in which it was first put. Whether, when goods are ordered for a special use, there is an implied warranty on the part of the seller that they are fit for that use, was wholly immaterial, because no such order was stated or relied on; of course, no such warranty could arise. The action is for goods sold and delivered. It is conceded that the defendant received the goods and retained them. The law implies an obligation to pay their value, quantum valebant. If they were ordered for a special purpose, and were not fit for such purpose, the defendant’s remedy was to return them or decline receiving them. Such a refusal to accept would enable the party ordering them to recover back the price, if paid; or afford him a good defence to an action for the price. But he may prefer to keep them, and apply them to some other use, or sell them; and if he does, he must pay their actual value, that is, what they were worth at the time and place of delivery,for any purpose. Exceptions overruled.