By the terms of the report under which this case has been heard and upon which it must be decided, the plaintiff, in accordance with the stipulation of the parties, gets judgment,, unless “upon the law and facts and findings of the jury . . . the defendant is entitled to a verdict.” While the report states that the defendant excepted to the ordering of a verdict on the evidence and the answers to the questions submitted, its form does not permit a new trial in case this or any other exception was well taken, unless as matter of law he was entitled to a verdict.
The plaintiff claims damages for breach of a contract, unperformed in part, evidenced in writing as follows:
“Feb. 11,1919.
Messrs. Walker Bros. Co.,
Boston, Mass.
Dear Sirs:
We enter your order for 50 barrels of Refined Lime Juice @ 80c per gallon 1% 10 days f. o. b. 93 Central Street.
Barrels charged, allowed for when returned in good condition.
Goods to be taken in 5 bbl. lots on or before June 1st, 1919.
Very truly yours,
J. P. W. yon Laer & Co.”
The signature is admitted to be that of the defendant, who apparently did business under the name signed to said letter.
Deliveries were made under this contract in lots of five barrels each on March 10, 14, May 5 and 29, 1919. On May 26 of that year, a demand was made upon the defendant for the thirty-five barrels of lime juice then undelivered. No other demand was made prior to June 1, 1919.
The defendant testified that lime juice would not keep for any length of time in barrels, and that it was necessary to rectify or clarify it as ordered; that although he had plenty of crude limp juice with which to satisfy the final order, he could not clarify more than fifteen to twenty barrels per week; that it was a physical impossibility for him to fill the demand referred to before June 1,1919, on which day he claims his obligation ceased because of the plaintiff’s failure to order in five barrel lots; that he had repeatedly requested the plaintiff to give him shipping instructions, but that such had not been given except as above stated. He fur*214ther testified that the plaintiff knew it would be physically impossible for him to turn out so large a quantity in so few days. This the plaintiff denied.
The plaintiff testified that the defendant^ after giving the final order and before June 1, 1919, promised to deliver the lime juice to it at a later date, and that the company consented to this change in time; that in several conversations subsequent to June 1, 1919, the defendant promised to ship the balance of the orden The jury, answering a question submitted to them, found that the parties prior to June 1 agreed to extend the time for delivery. The question was not so framed as to require any broader answer than that stated. There was evidence that the defendant did on August 7, 1919, deliver one barrel under the contract.
The evidence so introduced and the question' submitted, both without objection or exception, clearly show that the case was not tried with the rights of the parties restricted by the declaration; hence no question of pleading is now open. Shannon v. Willard, 201 Mass. 377. Serabian v. Titian, 229 Mass. 191.
Apart from any question of the interpretation of the original contract, the jury found that the time for delivery was extended before June 1,1919. They could further have found that the defendant did agree before then to deliver at a later time the thirty-five barrels ordered May 26, 1919, and that he failed to do so. Hence no verdict could have been ordered in the defendant’s favor. The parties could orally modify the time and manner of performance fixed in the contract. Freedman v. Gordon, 220 Mass. 324. Gouzoulas v. F. W. Stock & Sons, 223 Mass. 537. Roxbury Painting & Decorating Co. v. Nute, 233 Mass. 112.
It is unnecessary to consider the defendant’s remaining exceptions. Even if all were well founded, none went to the gist of the action and if sustained requires a defendant’s verdict.
Judgment for the plaintiff on the verdict.