Both parties agree that the defendants entered into a contract to buy a certain quantity of wood of the plaintiff at five dollars a cord, and that the plaintiff had drawn this quantity to the defendants’ depot. The defendants contended that this wood was not of the same kind or quality as the wood bargained for. The plaintiff, on the other hand, contended that the wood was of the same land and quality; and he also claimed that, if it was not, yet the defendants had accepted it as delivered under the contract. This was the only controversy between the parties.
Upon the question of acceptance, the defendants asked their superintendent and their agent, each, whether “ he ever accepted the wood.” The court excluded the question, but ruled “ that the defendants might show what was done, or what was not done, by them, in reference to the wood.” This would include what was said or left unsaid by them to the plaintiff. We are of opinion that the defendants have no ground of complaint. They were allowed to put in all the facts. The question put called for a conclusion or opinion of the witness as to whether what'had been done or said, or left undone or unsaid, by the defendants, amounted in law to an acceptance; and was therefore incompetent.
But we are of opinion that the testimony offered, of the value of the wood actually delivered, should have been admitted. The fact that the wood delivered was of much less value than five dollars a cord, if proved, would have some tendency to show that *279it was not of the kind and quality bargained for. The same question arose in Upton v. Winchester, 106 Mass. 830, and the evidence was held to be admissible. See also Bradbury v. Dwight, 3 Met. 81.
The other exception taken at the trial was not argued, and we consider it waived.
Exceptions sustained.