1. The defendant has no valid exception to the admission of the questions and answers put to him in cross-examination. ' The judge, in the exercise of his discretion, might well permit the questions to be put, with a view to elicit evidence tending to contradict the defendant’s testimony" on the direct examination that the stock and patents of the Duplex Company were worthless because the company’s patents were infringements of the patents of the Municipal Company, most of whose stock had been purchased by him. But if the questions had been incompetent it would still have been our duty to over*521rule this exception, on the ground that the answers introduced no evidence that did the defendant any harm. The answers denied the existence of any of the supposed facts sought to be proved by the plaintiff, and contained nothing that could be used against the defendant.
2. It was within the discretion of the judge, with the consent of the plaintiff’s counsel, to give an instruction to the jury more favorable to the defendant than that which he had previously expressed an intention to give. Eldridge v. Hawley, 115 Mass. 410, 412. Providence Worcester Railroad v. Worcester, 155 Mass. 85, 41. .He gave the defendant an opportunity to reopen the case, and to introduce further evidence upon the question presented by the change in the ruling. Although some of the defendant’s witnesses had then left the court-room, it is to be assumed that the judge would have given him any reasonable time necessary to enable him to procure all known evidence bearing upon the question. The defendant declined to accept the offer then to reopen the case, and elected to go on with his argument. He fails to show that there was any error of law in the action of the judge, and it does not appear, nor can the defendant be heard to say, that the judicial discretion was exercised unwisely.
There is another distinct ground upon which this exception might be overruled. The subject to which the alleged error relates is the opening to the defendant of a defence which, but for the plaintiff’s consent, the judge would have ruled out as inapplicable to the case. If the defendant was not entitled to rely upon this defence, he has no legal ground of objection that it was not opened to him in so favorable a way as he desired. We are of opinion that it was not properly open, on the evidence. Upon that part of his case which set up the failure of the consideration of the notes, as distinguished from his allegations of fraud, it was immaterial that the patents owned by the corporation were worthless. He got the stock which he bargained for, and in the absence of a warranty or of fraud, the value of it was of no consequence. Hunting v. Downer, 151 Mass. 275, 277, and cases cited.
Exceptions overruled.