¶1The letter of April 29, taken in connection with the defendant’s testimony which was admitted in evidence (that she was a racing boat and not worth anything if not fitted for racing), and also taken in connection with the testimony that was excluded (that the fitting of the boat if it was to go to Providence to race ought to be different from the fitting the boat ought to have if it was to go to Chicago to race), might have justified the defendant in stopping work on the boat until he learned from the plaintiff whether he sold her to the “ Providence people ” who wanted to buy her. See in this connection Crossan v. New York New England Railroad, 149 Mass. 196. But that is not what the defendant did. In the words of the bill of exceptions “ The boat was subsequently finished by the defendant and sold by him. The proceeds of the sale were kept by him.” The letter is not a justification for the action which the defendant took.
¶2The defendant has urged upon us that there was a mistrial in the measure of damages, and that there should be a new trial although no exception was taken to the instructions given by the presiding judge on this point. We have no means of know*305ing what the ruling of the judge on the measure of damages was. For that reason it is not necessary to consider whether the remark of Bigelow, C. J., in Bond v. Bond, 7 Allen, 1, 6, relied on by the defendant, is not to be taken to apply to a motion for a new trial, as was the case in Ellis v. Ginsburg, 163 Mass. 143, the other case relied on by him in this connection.
¶3.Exceptions overruled.