(concurring). When the order of the plaintiff of January 9, 1907, for 2,500 feet of steel, of certain qualifications, was accepted by the defendants, a contract therefor arose between them. From the evidence it does not appear that the defendants expressly warranted the quality of the steel that was delivered and that was alleged not to meet the qualifications, and it is disputed that the defendants, at the time of their acceptance of the plaintiff’s order, were conusant of a contract of the plaintiff with the United States government to furnish steel possessing qualifications as per above order of January 9th. That disputed fact was resolved by the trial justice in favor of the defendants, and therefore that contract, with its penalties and consequences for breach, may not be said to have been found within the contemplation of the parties herein when they entered into their own reciprocal obligations. Having, however, proved a breach by the defendants, and although the latter appear to have taken back the defective steel, the plaintiff was entitled to some damage, if it be only nominal, though not to the damage attempted to be proved.
The judgment against the plaintiff must therefore .be reversed, and the cause remanded for a new trial.