Carroll, J.
This is an action of contract. There were two trials and there are three bills of exceptions. At the first trial the plaintiff recovered a verdict on the three counts of its declaration. The plaintiff sold the defendant forty-five thousand electric lamp bulbs, which, with the exception of twenty-three thousand, were delivered to him. The first count is for damages in the sum of $1,115 for the failure of the defendant to receive them. The second count is on a promissory note for $372, being one of a series of notes given by the defendant for the goods sold. The third count is on an account annexed for lamp bulbs to the value of $187.80. At the second trial the third count was so amended as to seek to recover the same amount at the agreed price of $187.80.
The verdict at the first trial was set aside on the motion of the defendant and a new trial was ordered on the question of damages, “unless the plaintiff remits so much of the verdict as is in excess of the sum of $610 within twenty days from this date,” the judge giving as his reason for granting the motion, “There was no sufficient ground for a verdict on the first count.” To this the plaintiff excepted. At the second trial the judge directed a verdict for the defendant on the first count, to which ruling and the ruling excluding certain evidence, the plaintiff excepted. At the second trial the defendant excepted to the exclusion of certain evidence offered by him and to the allowance of the amendment to the third count.
The plaintiff’s exception taken at the first trial to the allowance of the defendant’s motion asking the court to set aside the verdict [490]*490must be overruled. The granting of a new trial, where no question of law is involved, is a matter of discretion and is not the subject of an exception. Lopes v. Connolly, 210 Mass. 487, 495, 496. Ramsay v. LeBow, 220 Mass. 227. Loveland v. Rand, 200 Mass. 142. Parker v. Griffith, 172 Mass. 87. In deciding there was no sufficient ground for the verdict on the first count, the judge did not make a ruling of law. The statement of his reasons under St. 1911, c. 501, for setting aside the verdict, was merely a recital that there was no sufficient ground in point of fact for such a verdict as was rendered on the first count and that it was against the evidence and the weight of the evidence. See Edwards v. Willey, 218 Mass. 363; Ramsay v. LeBow, supra; Welsh v. Milton Water Co. 200 Mass. 409, 411.
At the second trial the plaintiff offered to show that from July 25,1913, to August 1,1914, the market price of these lamps was ten cents, or five cents less than the contract price, at which price of ten cents the plaintiff sold the lamps in July, 1914. The defendant, on July 10, 1913, wrote the plaintiff referring to the twenty-three thousand lamps or bulbs for which it sought damages under the first count, saying, “I shall have to ask you not to send me any more of the miniature and candelabra base bulbs until we have an agreement regarding prices for I cannot afford to pay you fifteen cents and assume so large a quantity at once, when I can buy them for practically the same price as I want them.” The miniature and candelabra bulbs spoken of in this letter, are the twenty-three thousand lamp bulbs involved in the first count. July 21, 1913, the plaintiff wrote saying, “If you cannot use the lamps at these prices, I will dispose of them elsewhere, as I can easily do so at better prices than quoted you.” The plaintiff knew on receipt of the letter of July 10, that the deféndant had repudiated the contract and had refused to receive the remaining bulbs. The plaintiff then had a right of action against him because of his breach of the agreement and the measure of its damages must be determined as of that date. The plaintiff could not delay until there was a change in the market, and place the loss upon the defendant. Its duty was to be reasonably active to save itself from loss. Hall v. Paine, 224 Mass. 62, 65. Collins v. Delaporte, 115 Mass. 159, 162. F. W. Stock & Sons v. Snell, 213 Mass. 449, 453. There was no evidence that the plaintiff suf[491]*491fered any substantial loss by the defendant’s refusal, because there was nothing to show that the market price at the time was any less than the contract price; in fact, it offered to show that “from April 1, 1913, to July 25, 1913, the market price of the lamps which had been delivered to the defendant was the same as the contract price” and in its letter of July 21, 1913, admitted that the market price was higher than the contract price, when it says, “If you cannot use the lamps at these prices, I will dispose of them elsewhere, as I can easily do so at better prices than quoted you/’ The evidence of the market price from July 25, 1913, to August 1, 1914, was excluded properly.
The condition of the market for these goods from July 25,1913, to August 1, 1914, was not material, and as the defendant has not shown any substantial loss, it is not entitled to recover substantial damages on the first count.
There was, however, evidence that the defendant broke the contract in refusing to receive the merchandise purchased, and for this breach the plaintiff is entitled to nominal damages. Tufts v. Bennett, 163 Mass. 398. While the plaintiff wrote the defendant saying, “If you cannot use the lamps at these prices, I will dispose of them elsewhere, as I can easily do so at better prices,” this can hardly be said to have entirely relieved the defendant of the obligation of the contract, or to amount to a consent to his discharge. It was an admission that the market price was higher than the contract price, but was not as matter of law a waiver of its right to recover nominal damages. The plaintiff’s exception to the ruling that it could not recover on the first count, therefore, must be sustained. But as this error does not affect the substantial rights of the parties, judgment is to be entered for the plaintiff on the first count for nominal damages only, in the sum of $1. St. 1913, c. 716.
At the second trial the plaintiff was permitted to amend its third count. This count, before its amendment, was on an account annexed for lamp bulbs of the value of $187.80, with interest. The amendment is for lamp bulbs sold and delivered to the defendant at an agreed price of $187.80. It was agreed that this price was the price agreed upon by the parties. The defendant excepted to the allowance of this amendment. Although the trial was limited to the question of damages, the judge could [492]*492allow the amendment and there was no error of law in this ruling. This exception is overruled. McLaughlin v. West End Street Railway, 186 Mass. 150.
The second count was on a promissory note for $372. The defendant offered to show that he delivered two thousand lamps to an expressman with “directions to be returned to the plaintiff in payment or satisfaction of the note,” and offered letters written by him to the plaintiff, and further offered to prove that there was a failure of consideration because “the bulbs were not as represented.” It was agreed that the secretary of the plaintiff’s company would testify “that the two thousand lamps which the defendant undertook to return to the plaintiff were placed by the plaintiff in storage subject to the order of the defendant.” This exception was properly overruled.
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Carroll, J.
This is an action of contract. There were two trials and there are three bills of exceptions. At the first trial the plaintiff recovered a verdict on the three counts of its declaration. The plaintiff sold the defendant forty-five thousand electric lamp bulbs, which, with the exception of twenty-three thousand, were delivered to him. The first count is for damages in the sum of $1,115 for the failure of the defendant to receive them. The second count is on a promissory note for $372, being one of a series of notes given by the defendant for the goods sold. The third count is on an account annexed for lamp bulbs to the value of $187.80. At the second trial the third count was so amended as to seek to recover the same amount at the agreed price of $187.80.
The verdict at the first trial was set aside on the motion of the defendant and a new trial was ordered on the question of damages, “unless the plaintiff remits so much of the verdict as is in excess of the sum of $610 within twenty days from this date,” the judge giving as his reason for granting the motion, “There was no sufficient ground for a verdict on the first count.” To this the plaintiff excepted. At the second trial the judge directed a verdict for the defendant on the first count, to which ruling and the ruling excluding certain evidence, the plaintiff excepted. At the second trial the defendant excepted to the exclusion of certain evidence offered by him and to the allowance of the amendment to the third count.
The plaintiff’s exception taken at the first trial to the allowance of the defendant’s motion asking the court to set aside the verdict [490]*490must be overruled. The granting of a new trial, where no question of law is involved, is a matter of discretion and is not the subject of an exception. Lopes v. Connolly, 210 Mass. 487, 495, 496. Ramsay v. LeBow, 220 Mass. 227. Loveland v. Rand, 200 Mass. 142. Parker v. Griffith, 172 Mass. 87. In deciding there was no sufficient ground for the verdict on the first count, the judge did not make a ruling of law. The statement of his reasons under St. 1911, c. 501, for setting aside the verdict, was merely a recital that there was no sufficient ground in point of fact for such a verdict as was rendered on the first count and that it was against the evidence and the weight of the evidence. See Edwards v. Willey, 218 Mass. 363; Ramsay v. LeBow, supra; Welsh v. Milton Water Co. 200 Mass. 409, 411.
At the second trial the plaintiff offered to show that from July 25,1913, to August 1,1914, the market price of these lamps was ten cents, or five cents less than the contract price, at which price of ten cents the plaintiff sold the lamps in July, 1914. The defendant, on July 10, 1913, wrote the plaintiff referring to the twenty-three thousand lamps or bulbs for which it sought damages under the first count, saying, “I shall have to ask you not to send me any more of the miniature and candelabra base bulbs until we have an agreement regarding prices for I cannot afford to pay you fifteen cents and assume so large a quantity at once, when I can buy them for practically the same price as I want them.” The miniature and candelabra bulbs spoken of in this letter, are the twenty-three thousand lamp bulbs involved in the first count. July 21, 1913, the plaintiff wrote saying, “If you cannot use the lamps at these prices, I will dispose of them elsewhere, as I can easily do so at better prices than quoted you.” The plaintiff knew on receipt of the letter of July 10, that the deféndant had repudiated the contract and had refused to receive the remaining bulbs. The plaintiff then had a right of action against him because of his breach of the agreement and the measure of its damages must be determined as of that date. The plaintiff could not delay until there was a change in the market, and place the loss upon the defendant. Its duty was to be reasonably active to save itself from loss. Hall v. Paine, 224 Mass. 62, 65. Collins v. Delaporte, 115 Mass. 159, 162. F. W. Stock & Sons v. Snell, 213 Mass. 449, 453. There was no evidence that the plaintiff suf[491]*491fered any substantial loss by the defendant’s refusal, because there was nothing to show that the market price at the time was any less than the contract price; in fact, it offered to show that “from April 1, 1913, to July 25, 1913, the market price of the lamps which had been delivered to the defendant was the same as the contract price” and in its letter of July 21, 1913, admitted that the market price was higher than the contract price, when it says, “If you cannot use the lamps at these prices, I will dispose of them elsewhere, as I can easily do so at better prices than quoted you/’ The evidence of the market price from July 25, 1913, to August 1, 1914, was excluded properly.
The condition of the market for these goods from July 25,1913, to August 1, 1914, was not material, and as the defendant has not shown any substantial loss, it is not entitled to recover substantial damages on the first count.
There was, however, evidence that the defendant broke the contract in refusing to receive the merchandise purchased, and for this breach the plaintiff is entitled to nominal damages. Tufts v. Bennett, 163 Mass. 398. While the plaintiff wrote the defendant saying, “If you cannot use the lamps at these prices, I will dispose of them elsewhere, as I can easily do so at better prices,” this can hardly be said to have entirely relieved the defendant of the obligation of the contract, or to amount to a consent to his discharge. It was an admission that the market price was higher than the contract price, but was not as matter of law a waiver of its right to recover nominal damages. The plaintiff’s exception to the ruling that it could not recover on the first count, therefore, must be sustained. But as this error does not affect the substantial rights of the parties, judgment is to be entered for the plaintiff on the first count for nominal damages only, in the sum of $1. St. 1913, c. 716.
At the second trial the plaintiff was permitted to amend its third count. This count, before its amendment, was on an account annexed for lamp bulbs of the value of $187.80, with interest. The amendment is for lamp bulbs sold and delivered to the defendant at an agreed price of $187.80. It was agreed that this price was the price agreed upon by the parties. The defendant excepted to the allowance of this amendment. Although the trial was limited to the question of damages, the judge could [492]*492allow the amendment and there was no error of law in this ruling. This exception is overruled. McLaughlin v. West End Street Railway, 186 Mass. 150.
The second count was on a promissory note for $372. The defendant offered to show that he delivered two thousand lamps to an expressman with “directions to be returned to the plaintiff in payment or satisfaction of the note,” and offered letters written by him to the plaintiff, and further offered to prove that there was a failure of consideration because “the bulbs were not as represented.” It was agreed that the secretary of the plaintiff’s company would testify “that the two thousand lamps which the defendant undertook to return to the plaintiff were placed by the plaintiff in storage subject to the order of the defendant.” This exception was properly overruled. There was nothing to show that the plaintiff accepted the lamps in payment or satisfaction, or that it consented to receive them for this purpose. The offer to show that they were not as represented is too general to permit an exception. There is nothing to show in what respect the goods were defective or what false representations were made concerning them. The verdict on the second count should stand and this exception of the defendant must be overruled.
The third count, as amended, was to recover for the lamps at the price agreed upon. The defendant had received twenty-two thous- and lamps. These lamps had been paid for, except the amounts stated in counts two and three. Under count three the defendant offered to show that in October, 1913, he tested “with the eye about six thousand of the twenty-two thousand lamps ” and “ found about half of them defective,” and the Edison Company “tested fifteen bulbs by a scientific test and found them all defective.” “The defendant disclaimed any intention of showing that the evidence offered related to the lamps mentioned in the third count.”
The record does not show that the plaintiff was the manufacturer of the lamps. They were of various candle power and design and, although the lamps tested were a part of the twenty-two thousand, there is nothing to show in what respect they were defective, nor that the test made was fairly applicable to the lamps mentioned in the third count because of their size and kind. The six thousand lamps may have been defective and the lamps in [493]*493suit may have been perfect, so far as the evidence shows. The defendant did not go far enough in his offer of evidence to show that this exception should be sustained.
The plaintiff’s exceptions taken at the first trial are overruled.
The plaintiff’s exception at the second trial to the ordering of a verdict for the defendant is sustained and judgment is to be entered for the plaintiff on this count for nominal damages.
The other exception of the plaintiff at this trial is overruled.
The defendant’s exceptions are overruled.
So ordered.