This case (now for the third time) comes before the court upon substantially the same evidence as was given at the former trials. Its legal effect is the same; and it was held by this court that it proved an entire contract of sale, for the eight bales of wool, which the defendant could not rescind in part only, on discovering that one of the bales was of a different kind from that for which it was bought. The question of the entirety of the contract, after this decision, could not be submitted to the jury.
Nor was there any evidence which would justify submitting to the jury the question whether the defendant bought the bale which he returned. There was no dispute that the subject matter of the sale included all the eight bales.
In regard to the several instructions asked for on the ground that the bale in question was delivered to the defendant through the fraud or mistake of the vendor, we see no evidence in the case which made such instructions necessary.
As to the rule of damages, the instruction given was in the words of the rule stated in the former decision. See 98 Mass. 205, 210. Exceptions overruled.