The opinion of the Court was delivered by
Whitman C.The plaintiffs move for a new trial, alleging, that the verdict in this case is against evidence, and against the instructions and- direction pf the Court in matter of Jaw. The declaration in the writ is on a special agreement, and also for goods sold and delivered, labor done and performed? and money laid out, &c. The special agreement js in *149writing. The defendant agreed to take and pay for certain machines to be made according to a model to be by him furnished. The plaintiffs agreed to have them done and ready to be delivered at a certain place, on a certain day. The defendant never furnished any model. The plaintiffs, some months after the machines were to have been delivered, purchased a model, such as they supposed the defendant should have furn-> ished, and proceeded to make the machines, and had them prepared to be put together. This they accomplished in the .course of six or eight months after the time when, according to the contract, they were to have been delivered; but never tendered them at the place at which they where, according to the contract, to have been delivered. They contend now, that, inasmuch as the defendant did not furnish a model, they had a right to procure one, and charge him with the cost of it; and to recover of him the price agreed upon for the machines, under some of the counts contained in their declaration. But it seems to us that the verdict is right, and ought not to be disturbed. If the defendant did not furnish a model the plaintiffs had no right to proceed without it. And if the defendant had furnished his model, the plaintiffs could not recover for the price of the machines without delivering them at the place agreed upon, unless the defendant had consented to receive them elswhere, which it is not pretended that he ever did. We cannot therefore consider the verdict as against evidence or the weight of evidence.
But the plaintiffs aver that the verdict was against the instruction and direction of the court in matter of law. The case does not exhibit any instruction or direction of the Court to the jury. We therefore cannot know what the instruction and direction were. If they were, that, upon the foregoing state of the case, the plaintiffs were entitled to recover, we cannot but regard them as having been erroneously given.
The motion for a new trial is therefore overruled, and judgment must be entered on the verdict.