1. The motion to make a material amendment, during the progress of the trial, was addressed to the discretion of the presiding judge; and his refusal to allow it is not the ' subject of exception. Richmond Iron Works v. Woodruff, 8 Gray, 447.

2. The action was to recover back money paid by the plaintiffs on account of a contract to make certain drills, which the defendants had never completed. The defendants denied having made the contract which the plaintiffs alleged, and contended that they had only been employed to furnish certain labor and materials under the direction of the plaintiffs, to be paid for as the work made progress. This was not in discharge or avoidance of the contract which the plaintiffs relied on, and did not require to be set up in the answer. It tended to disprove the plaintiffs’ case, and was admissible under the general denial of the cause of action stated in the declaration. The evidence that one of the plaintiffs had directed numerous alterations during the progress of the work, which was admitted under the plaintiffs’ exception, was therefore competent. Its purpose was to show that the plaintiffs had not conducted in a manner probably consistent with the contract declared on.

Exceptions overruled.