The plaintiff agreed to remove a penstock, fore-bay and water wheels used in connection with the defendant’s mills at Lawrence, and was to be paid on the basis of the cost of the work plus ten per cent. In the first count of his declaration he alleges the defendant’s breach of this agreement. It is not questioned that he is entitled to recover on this count.
In the second count the plaintiff alleges that subsequently to the making of the contract to remove the water wheels and appliances, he was employed to install a new penstock, water wheels and other work incidental thereto, for which work he was to be paid the cost plus ten per cent, and that the contract was broken by the defendant. The jury found that the contract as finally made included the installation of a new penstock and the construction of a new forebay. A verdict was rendered for the plaintiff. The case is before us on the report of the trial judge upon the issue whether there was "sufficient evidence” to warrant the submission to the jury of the question: "Did . . . the contract . . . include: (A) The installation of the new penstock; (B) The construction of the new forebay? ”
The correspondence is entirely confined, and limited to the removal of the penstock, forebay and water wheels. There is no reference to the construction or installation of anything new. Considering all the conversation between the plaintiff and the defendant’s agents, we fail to find anything that could be construed as an agreement authorizing the plaintiff to do the work of constructing the new water wheels a.nd penstock.
The plaintiff relies on the conversation with the defendant’s agent, when the latter said that the job was a large one and he wanted it done in six weeks, “even if you have to work night and day.” There is nothing in this remark to show that the plaintiff was employed to do the work of constructing the new plant.. *549The statement referred only to the work of removing the old material. All of the testimony supports the defendant’s claim that the plaintiff was hired only to remove, and not to rebuild or construct, the appliances.
According to the report, “judgment is to be entered for the plaintiff on the first count for the sum of $99.58, and a finding for the defendant is to be made on the second count.”
So ordered.