The plaintiff bought from the defendant on January 7, 1916, a burned automobile, paying therefor the sum of $275. He testified that it then became his property, and that the defendant was unable to make delivery of the machine. There was also evidence that the defendant said that, “on account of certain complications with the insurance company, this burned chassis at Newport he was absolutely unable to make delivery of, this automobile, or to give good title of the same to Mr. Weld.” The defendant denied that he was unable to deliver the automobile. His contention was that it was to be taken by the plaintiff “just where it laid; that the defendant was under no obligation whatever to do any other thing” and “knew of no reason why Mr. Weld could not go down there and get it.” The jury found for the plaintiff. The defendant moved in writing to have the judge direct a verdict in his favor, and to the denial of this motion by the judge the defendant excepted.

*181The declaration is for breach of an executory contract of sale. The trial proceeded on the ground of an actual sale. No question of pleading was raised and the motion of the defendant did not directly call the judge’s attention to this point. In view of the evidence and the conduct of the parties, we treat the case as that of an actual sale. See Lafrance v. Desautels, 225 Mass. 324.

As there was evidence for the jury that the defendant refused to make delivery or to give good title to the property sold, although fully paid therefor, the judge could not grant the defendant’s motion.

Exceptions overruled.