It is unquestioned, that delivery was free on board at the place where the bricks were to be used, and that the wall, after its erection, because of the variation in color, proved unacceptable to the supervising architect, and that the plaintiffs under their contract with the owner were obliged to demolish and rebuild it. The defendant, although promptly notified *304of the imperfections upon discovery, contends, that the sale was for a quality of bricks known to the trade as “up and down hard brick,” wherein uniformity of color is not contemplated, and asked the presiding judge in the first, second, third and sixth requests to rule, that, as there was no express or implied affirmation of quality and the defendant was not charged with fraud, the plaintiffs must be presumed to have bought on their own judgment. St. 1908, c. 237, § 12.
But these requests could not be given. The contract was not confined to the correspondence. The letters, as the jury properly could find, were merely preliminary to the interview between the plaintiffs and the defendant’s representative, when the terms of sale were settled, and the order for the bricks given. It is in the evidence of what then took place that the contract must be sought. The testimony is irreconcilable, and the jury were to determine whom they would believe. If they accepted the plaintiffs’ statements, the defendant’s agent, having been informed that, as both sides of the wall would have to be faced, the facings necessarily would have to be of a uniform shade or appearance similar to the brick exhibited which the architect had accepted as of the required color, replied, that he knew what the requirements were and that the defendant would furnish the bricks accordingly. The order, thereupon given and accepted, the jury could say constituted a sale, where the plaintiffs relied on the statements of the seller, and the defendant impliedly warranted, that the bricks delivered in bulk should correspond with the sample. Atwater v. Clancy, 107 Mass. 369. Gould v. Stein, 149 Mass. 570. Borden v. Fine, 212 Mass. 425. St. 1908, c. 237, § 16. If these terms were found to constitute the contract, the evidence was plenary that the shipments did not conform to the sample in quality; the plaintiffs therefore could recover damages, and the fourth and fifth requests were inappropriate. Borden v. Fine, 212 Mass. 425, 427, and cases cited. , v
The admission in evidence of the plaintiffs’ ledger is not shown to have harmed the defendant, and no error appears in any of the rulings to which the defendant excepted. See St. 1913, c. 288.
The plaintiffs, although they prevailed, are dissatisfied with the rulings as to the measure of damages. By the acceptance of title the plaintiffs did not as matter of law release the defendant, *305or bar their claim for damages. St. 1908, c. 237, § 49. It was a question of fact whether they waived the warranty and took the bricks as they found them on the cars, a negative answer to which has been established in their favor by the verdict. Taylor v. Cole, 111 Mass. 363. Sessa v. Arthur, 183 Mass. 230. Borden v. Fine, 212 Mass. 425, 428. But, if they knew or ought to have known of the defective coloring, no damages caused by the use of the bricks can be recovered. Day v. Mapes-Reeve Construction Co. 174 Mass. 412. The jury were to determine, whether by reason of moisture caused by the weather the bricks at the time of delivery, and when placed in the wall, had taken on and retained a darker appearance, rendering it difficult to ascertain their true or natural color, and, if this appeared, whether the plaintiffs, who might rely on the presumption that the defendant would perform its contract, had acted with reasonable diligence in using the bricks without further inspection, or whether the general appearance was such that imperfections would not have been disclosed by an extended examination. A conclusion that no negligence had been shown, in connection with the uncontradicted evidence that notice was promptly given to the defendant who declined further performance, would warrant the assessment of damages for, not only the difference between what the plaintiffs bought and what they received, but also the expense of taking down and rebuilding the wall. St. 1908, c. 237, § 49. Hanson & Parker v. Wittenberg, 205 Mass. 319, 327, 328.
The judge, whose attention had been directed to the rule to be applied by the plaintiffs’ request, and in his rulings upon the exclusion of evidence, should have so instructed the jury. Bride v. Clark, 161 Mass. 130. But instead he charged, that the plaintiffs could recover only a sum equal to the difference between the value of bricks the color of the sample and the value of the bricks actually delivered. Nor was the error cured by the further instruction, that the jury might find the difference consisted in the expense to the plaintiffs to cull from the mass the bricks which they used in the reconstructed wall.
A majority of the court are accordingly of opinion that the defendant’s exceptions should be overruled, but the plaintiffs’ exceptions must be sustained.
So ordered.