The first count of the declaration alleges, that the parties entered into two contracts dated, respectively, February 12, 1920, and March 1, 1920, whereby the plaintiffs agreed to procure, and the defendants, who were wholesale dealers and importers, agreed to take and pay for a quantity of ninety line and sixty line rugs of various sizes and designs as shown by samples, which were to be made in China for the plaintiffs, who were to pay all import duties. Delivery under the contract for the' ninety line rugs was to be six months from February 12, 1920. While it was conceded that by a subsequent agreement the price and time for delivery of these rugs were changed, the evidence, whether there was any modification of the alleged second contract, is irreconcilable. The defendants, who contended throughout the trial that all the rugs were covered by one order, wrote the plaintiffs on November 18, 1920, after acceptance of the first shipment as hereafter stated, “We find that we do not need, even under the present terms, any more of the rugs which were covered by the original order, which owing to changed conditions you were unfortunately obliged to abandon with our consent, and therefore you will kindly not make us any further shipments.” The plaintiffs, however, did not consent to a cancellation, and on or about November 20, 1920, notified the defendants, that the second shipment, which comprised the balance of the rugs specified in the first order, and the balance of rugs of the second order, had arrived in New York. And there was evidence tending to show that the plaintiffs offered the rugs covered by the second shipment to the defendants with a request for payment on the modified terms.
The plaintiffs not having declared on the contract as modified, the defendants moved for a directed verdict. But the jury on conflicting evidence could find that the order for the sixty fine rugs was a separate or additional order, given orally by the defendant Brooks, and was thus specified in the plaintiffs’ confirmation in writing sent to the de*386fendants on March 1, 1920. The proof therefore as to this contract could be found to conform to the statement in the declaration, that in the beginning there were two contracts which the parties mutually agreed to perform.
If so considered, the amount of each contract, which was riot in writing signed by the defendants, was in excess of $500, and the statute of frauds is pleaded. G. L. c. 106, § 6. See Adams v. Cohen, 242 Mass. 17, 19, following Goddard v. Binney, 115 Mass. 450, 454. The plaintiffs were not the manufacturers. Atlas Shoe Co. v. Rosenthal, 242 Mass. 15.
It is unnecessary to discuss the doctrine of substituted performance by the acceptance of a part of the rugs under the modified terms of the first contract, which the plaintiff claimed at the trial took the case out of the statute. ■ Cummings v. Arnold, 3 Met. 486.
The first shipment, as the jury could find, arrived in Boston in bond on September 23, 1920, but could not be removed until appraised and examined .by the custom oficiáis October 9. The time for delivery under the first contract having elapsed, the parties entered into negotiations between October 13 and November 5, for a rearrangement of terms. The evidence as to the result of the conference was in conflict, but on the testimony of the plaintiffs the jury could find that the defendants agreed to take the first shipment of eleven hundred and twenty feet at a less price for each foot than the price named in the contract for the ninety fine rugs, delivery to be made at the store and payment to be fifty per centum in cash and the balance within sixty days. The plaintiffs testified, that this concession was made not only to induce the. defendants to make payment without further delay, but on the further condition, which was accepted, that the defendants would accept and pay for the second shipment on arrival, at the modified price, without further delay.
While the first shipment was delivered and paid for, the defendants declined to accept the second shipment as shown by their letter previously quoted. The first count is for breach of contract for alleged failure to take and pay for the rugs. The absolute statement by the defendants, that *387they did not intend to perform, which refusal they reaffirmed when notified of the remaining shipment, having gone to the essence of their promise, the jury could say was a repudiation, when considered in connection with their testimony that there was only one contract covering all the rugs. And, the plaintiffs having been able and willing to perform, could recover damages, the measure of which under the second contract, if that contract was found not to have been modified, was the difference between the contract price and the market price at the date of breach. Barrie v. Quinby, 206 Mass. 259, 268.
The jury, as the first count stood, were to determine under appropriate instructions whether the defendants had committed a breach of the second contract as declared on, which having contained no limitation as to time of delivery, the plaintiffs were bound to deliver only within a reasonable time, to be ascertained in view of the circumstances known to the parties relating to the place of manufacture, and facilities of transportation.
But the defendants’ first request, that, not having declared on the modified contract, the plaintiffs “ can recover, if at all, only on the original contracts,” and the fourth request, that “ An agreement made the early part of November to take the rugs at a different price than that named in the original order cannot be the basis for recovery by the plaintiffs in this action, because the declaration does not refer to such agreement,” should have been given. King v. Faist, 161 Mass. 449, 455, 457.
The refusal of the various requests that the plaintiffs could not recover for rugs sold and delivered also was wrong. The contracts were to sell rugs to be manufactured, the title to which would not pass until the rugs were delivered and received, and the plaintiffs could not recover the contract price on the second count on an account annexed for goods sold and delivered. Automatic Time Table Advertising Co. v. Automatic Time Table Co. 208 Mass. 252.
It is plain, without further discussion of other rulings requested by the defendants and refused, that, because of the errors sufficiently pointed out, there was a mistrial, and the *388general verdict for the plaintiffs was erroneous. By the terms of the report, which has not been substantially modified by the supplemental statement of the presiding judge, “ by agreement of the parties ... if the rulings and refusal to rule on the motion for verdict and on the request for rulings were correct, judgment is to be entered for the plaintiffs on the verdict; otherwise judgment is to be entered for the defendants.” It follows that the entry must be,
Judgment for the defendants.