The contract for the purchase of the cotton sweepings being oral, its terms are to be ascertained from the evidence, which would have warranted the judge, before whom the case was tried without a jury, in finding that the sale had been consummated upon the representations of the defendants that the goods in bulk to be delivered in the future should be like the sample exhibited. Atwater v. Clancy, 107 Mass. 369. And there would be a breach of the implied warranty, entitling the plaintiff to rescind upon reasonable notice to the defendants if the four shipments in question fell below the quality bought, or he might retain the cotton and recover damages. Whitmore v. South Boston Iron Co. 2 Allen, 52. Pike v. Fay, 101 Mass. 134. Gilmore v. Williams, 162 Mass. 351, 352. Fullam v. Wright & Colton Wire Cloth Co. 196 Mass. 474, 476. Procter v. Atlantic Fish Co. 208 Mass. 351, 354. St. 1908, c. 237, §§ 14, 16.
The sample must be deemed to have been one of the essential terms of sale, and, although the plaintiff availed himself of the opportunity for inspection before the shipments to his consignee, the cotton had been bagged by the defendants, and he testified, that during the customary examination* he rejected such portions as he observed to be defective, but the bags were not emptied, and the remainder was expected to be in conformity with the sample. It was a question of fact independently of the place of delivery, whether the plaintiff waived the warranty, and accepted the contents of the bags, and whether after arrival at the place of business of the consignee the cotton upon assortment proved to be of *428inferior quality. Taylor v. Cole, 111 Mass. 363. Androvette v. Parks, 207 Mass. 86.
The plaintiff’s evidence, if believed, having supported his contention, that there had been a breach, and that he had not relinquished his right to insist upon performance of the contract, these issues of fact, as well as the further issue whether after receiving information from the consignee he seasonably inspected the cotton, and gave notice to the defendants of the deficiency, with his claim for reclamation, aré settled conclusively in his favor by the judge’s finding. Brigham v. Lally, 130 Mass. 485. American Malting Co. v. Souther Brewing Co. 194 Mass. 89. Androvette v. Parks, 207 Mass. 86, 90. St. 1908, c. 237, § 49. The first, second, third, fourth and fifth rulings could not have been given.
It follows that there was a valuable consideration for the alleged' .promise of the defendants to reimburse the plaintiff for the difference between the price paid and the price obtained at the resale, which according to his evidence he made at their request. Blount v. Wheeler, 199 Mass. 330. The testimony is conflicting as to the existence of such an agreement, but the judge, as shown by his findings, must have accepted the plaintiff’s statements as controlling, and the sixth and seventh requests became inapplicable.
The defense of accord and satisfaction is not raised by the answer. Grinnell v. Spink, 128 Mass. 25. But apart from any question of pleading the plaintiff denied that his purchase, after the defendants’ failure to perform, of certain additional cotton of higher grade was in settlement and adjustment of his demand for damages, and the judge, not having been bound to accept the testimony of the defendants to the contrary, rightly refused to give their eighth request.
The exceptions to the admission of evidence not having been argued must be treated as waived.
Exceptions overruled.
The plaintiff testified that he cut open such bags as he selected for the purpose.