This right of the vendee, under an executory agreement of sale, to return goods which do not conform to the description in the contract, when there is no agreement for such return and no fraud upon the part of the vendor, arises, not from the existence of a warranty, or a breach thereof, nor from any express or implied power of rescission, but from the right of the vendee to reject and return goods he never agreed to buy, and the title to which has not passed to him. Benj. on Sales (2d Amer. Ed.), §§ 600, 887, 888, 895; Mansfield v. Trigg, 113 Mass. 350, 354; Osborn v. Gantz, 60 N.Y. 540. But in the absence of fraud and of any special agreement, such right of return in this case did not exist after delivery of the goods agreed upon and their acceptance by the vendee.

[Young C. Mfg. Co. v. Wakefield, 121 Mass. 91.] But when a certain quantity of goods, or a certain number of similar articles, are purchased as one transaction, the price being fixed by a measure or by one article, and the measuring or counting is done solely for the purpose of ascertaining the total amount to be paid, then the contract is entire and, ordinarily, if rescinded at all, must be rescinded in toto. [Mansfield v. Trigg, 113 Mass. 350; Morse v. Brackett, 98 Mass. 205.] I think this contract was entire, and, as rescission in toto cannot be made, and insolvency not being alleged or shown, and no other reason appearing why a court of equity should interfere, I agree that plaintiff cannot recover in this action.