(after stating the facts). There are many assignments of error on the part of the defendant. The one chiefly relied upon, however, seems to be that the defendant was entitled to an instructed verdict because plaintiff’s claim grew out of a special contract and involved an exchange of goods. Many authorities are cited to the effect that recovery can*258not be had under the common counts of assumpsit where damages are sought for the breach of a special contract. There is no doubt as to the correctness of the rule relied upon, but we are of .opinion that it is not applicable to the case at bar.

We are of opinion that the original contract was later modified by the parties through their correspondence. On October 2, 1913, after the discovery of the alleged unsatisfactory condition and quantity of the goods shipped by defendant to plaintiff, plaintiff wrote defendant as follows:

“We will gladly hold them subject to whatever disposition- we can make of them, and the writer will make an effort to do the best we possibly can for you. If this is not satisfactory then we must accept your proposition that you return goods to us of like amount; but in closing will say that this will be far from being a good business proposition.”

To this proposition defendant relied on October 4th:

“Your letter of the second instant received and we believe your suggestion to hold these goods and make whatever disposal of them that you can to be all right. Please do the very best you can on them.”

These letters, in our opinion, constitute a very clear proposal and acceptance. Therefore, the balance of the bill owing from defendant to the plaintiff became immediately due and payable and the goods shipped by defendant to plaintiff remained the property of the defendant in the possession of the plaintiff to be disposed of by the plaintiff for the account of the defendant. That such a balance may be recovered under the common counts in assumpsit is elementary. What occurred after that agreement had been reached is of no special importance. The most that can be said is that the defendant refused to pay the balance, and sought to secure a settlement on different terms which the plaintiff refused to accept. We think that *259the learned circuit judge should have directed a verdict for the plaintiff for the full amount claimed. Inasmuch as the jury, under a charge which is much criticised by the defendant, reached the same result, it becomes unimportant to consider the assignments of error based upon that charge.

The judgment is affirmed.