The evidence well warranted the inference that a sale of three tons of canvas paper stock, distinct from and additional to that which was delivered and received under the contract previously made with Cowen as agent for the plaintiff, was entered into between the parties on or about the 18th of February 1863. It was then ascertained that a larger amount of the article had been delivered at the plaintiff’s factory than by the existing contract he had agreed to purchase. What the rights of the respective parties might have been, if the defendant had then insisted that the plaintiff was bound to pay for the whole of the stock, having received the excess over the amount stipulated for by the contract into his possession, it is not necessary now to determine. Such delivery and receipt of the merchandise might have rendered the plaintiff liable to pay the market value of it, if the parties had stood on their strict rights. But it is clear from the evidence that neither of them intended to do so. On the contrary, the plaintiff expressed dissatisfaction with the price charged for the stock, and an unwillingness to retain the excess above the quantity stipulated for in the contract; the defendant on his part did not insist that the plaintiff was bound to keep the excess, or that he had already received and bought it, and was liable for the price but offered to take it from the plaintiff’s possession and sell it to other parties. In this state of things, a new negotiation wan *355entered upon, which resulted in a sale and purchase of the three tons of stock, not included in the original bargain, at a material reduction from the price charged by the defendant for it, or which had been paid for similar stock under the previous contract. As part of this new negotiation, and as an essential element of the new bargain on the faith of which the plaintiff purchased the three tons of stock, the defendant made a warranty of the article, for a breach of which this action is brought. Such being the aspect of the transaction, we are of opinion that the parties did enter into a new contract of sale for the three tons of stock, as set out in the declaration, the defendant expressly waiving any right which he might have had growing out of the previous dealings between himself and the plaintiff in relation thereto ; that such new contract was valid and binding, of which a warranty of the quantity of the article sold might well form a part; that such warranty was made on a sufficient consideration, and an action for a breach of it can be maintained.

The paroi evidence was rightly admitted. There was no written contract between the parties. The account which was made out, and by which the parties adjusted the balance due from the plaintiff, was nothing more than a common bill of parcels and receipt for money, the existence of which does not operate to exclude verbal evidence of the agreement of par-ties. Hazard v. Loring, 10 Cush. 267. New trial granted.