At the trial before Merrick, J., one of the plaintiffs testified that they were paid half the price by Gray in April 1847, finished two of the engines in July or August 1847, and went on with the others as fast as the foundations were ready to receive them; that in November 1847, the last two engines not being yet completed, but so far advanced that they would have been finished and started in a day or two, Gray became insolvent; that the plaintiffs then, supposing the defendants to be involved in the insolvency of their agent, and in order to make themselves as safe as possible, took away such parts of the engines already set up as could easily be removed ; that the witness asked the defendants’ treasurer, appointed after the failure, whether the defendants wished the plaintiffs to complete and finish the engines according to the agreement, and in reply was told that the corporation never made nor were bound by any agreement with the plaintiffs. There was no evidence that the defendants gave any subsequent consent to the completion of *496the work, or assumed any further liability. But it appeared that the plaintiffs afterwards completed the engines for the Massachusetts Iron Company, to whom these works belonged, reserving all the plaintiffs’ rights against these defendants.

The defendants contended that the agreement was discharged by the refusal of the plaintiffs to continue the work, and could not be held binding on the defendants, without proof of some subsequent agreement by them, and that there was no evidence which would sustain a verdict for the plaintiffs. And of this opinion was the presiding judge. A verdict was taken for the defendants accordingly, and his ruling was now confirmed bv the whole court.