It was undisputed that on January 13, 1920, the goods or Enters in question, title to which was in the plaintiff, were stored in a pubEc warehouse at Chicopee for which the plaintiff held a negotiable warehouse receipt. The jury would have been warranted in finding, that the superintendent of the warehouse, one Tuller, who desired their prompt removal as arrangements were pending for the discontinuance of the warehouse, communicated with the defendants, whose usual place of business was in Holyoke, concerning the purchase of the Enters, and after several preliminary talks the defendants said, “ they would be wiHing to buy ... at four cents per pound and authorized him to make arrangements with the plaintiff in their Dehalf.” If the jury so found, it would follow that in all the negotiations which foUowed Tuller acted as the agent of the defendants. The evidence also tended to show Tuller telephoned the plaintiff that he had a customer for the Enters at four cents a pound, and the plaintiff agreed to seU at this price, and requested Tuller to have the defendants send a written order with a check for $50 to bind the bargain. The defendants thereupon mailed to the plaintiff on January 13, 1920, a written order for thirty-two bales uncompressed Enters at four cents a pound “ ex warehouse Springfield our deEvery ” and a check for $50 on account. The jury could find on the plaintiff’s evidence there was a custom or usage in “ the cotton waste trade,” that the words in the defendants’ order, “ ex warehouse Springfield our deEvery,” meant, “ that the goods were sold ' just where they are placed in the warehouse; that the seUer does not have to remove them at all, and that the buyer has to take them either by truck, by rail, or by his own expense.’ ” Barrie v. Quinby, 206 Mass. 259, 264, 265. On the same day the plaintiff sent Tuller the warehouse receipt indorsed in blank, and the “ invoice ” with a letter which, after confirming the “ telephone conversation ” and stating the term of sale as “ net cash,” continued “ with the stipulation that you are to guarantee that payment is made to us within one week during which time deEvery is to be taken of the Enters. Inasmuch as the storage expires on the 10th of the month *8another storage period will not be incurred if the stock is removed within one week’s time. ... As usual the stock is to be weighed going out and the invoice we are attaching hereto with the average weight is to be corrected to correspond to the actual reweights of the 32 bales.”
The plaintiff accordingly had received and accepted from the defendants a written order for the linters. The invoice was in the name of the defendants, and, the warehouse receipt indorsed in blank having been delivered to their agent, there was evidence under which the jury were to determine, whether the parties intended that the general and absolute title to the linters should pass to the defendants. G. L. c. 106, § 20 (1), § 21 (1), § 29. G. L. c. 105, § 46. Morse v. Sherman, 106 Mass. 430. Townsend v. Hargraves, 118 Mass. 325. Automatic Time Table Advertising Co. v. Automatic Time Table Co. 208 Mass. 252. Stone Leather Co. v. Henry Boston & Sons, Ltd. 234 Mass. 477.
The instructions, that, if the jury found for the plaintiff for the contract price, the Enters would belong to the defendants, were legally correct, andno sufficient reason appears in the argument of the defendants why the question of the jury asking for instructions on this point should not have been so answered. Morse v. Sherman, supra.
The defendants, however, never removed the goods, nor paid the remainder of the purchase price. By telephone and by letters beginning on January 24, addressed to Tuller, the plaintiff demanded payment, and notified him that if payment was not made, the “ binder ” of $50 would be treated as forfeited. The plaintiff, having another lot of Enters in storage, sent to him as superintendent of the warehouse a check for storage charges on “ both lots of Enters . . . up to the February period,” on the tenth of which a new storage period for the bales sold the defendants would begin. And on February 14 by telegram and letter he demanded a return of the warehouse receipt which covered the goods sold. It was returned by Tuller with a letter which stated, that the receipt covered thirty-two bales of Enters “ which were sold the Barowsky Co.,” the defendants. The record recites, “ Enclosed in this letter was a negotiable warehouse *9receipt to the order of the plaintiff covering the thirty-two bales of linters. This receipt was issued to replace the receipt previously referred to, which upon the issuing of the new receipt was cancelled.” The plaintiff as soon as the warehouse receipt was returned “ attempted to sell the Enters, but was unsuccessful because of the unfavorable market conditions then existing.” The plaintiff retained counsel, and, in a letter to them of March 4, 1920, the defendants took the position, “ that at the time we purchased this- merchandise ... we did not state when we would remove this stock, and the understanding was that we will pay for the stock when we remove it. So far, oh account of freight conditions, we have not been able to touch it. However, we wiU do so as soon as we can-. In the meantime, if the Scofield Co. [meaning the plaintiff] are not satisfied with this arrangement, we are perfectly wilEng to take back our deposit we gave them and call the deal off.” The defendants’ counsel also wrote to plaintiff’s counsel, “ that when the goods were bought by the Barowsky company there was no definite date set as to when they were to take the goods. At present there is an embargo on, as you know, and as a consequence have not been able to get this merchandise out as they want to. Let me assure you that my chents want the goods and also that as soon as railroad faciEties are so that goods can be shipped, they will attend to this matter and have this affair taken care of.” The plaintiff’s counsel on the day of bringing the present action sent to the warehouse company the storage receipt covering the goods in question. The warehouse company, acting by Tuller as superintendent, returned the receipt, “ and wish to advise that these Enters are still in storage and we are holding for orders from Mr. Scofield, before we can make deEveries. It is necessary that this receipt be endorsed by Mr. Scofield.” The plaintiff indorsed and returned the receipt “ to the warehouse company instructing it to hold the thirty-two bales for the defendants,” and the company notified the plaintiff that it would comply with this request.
The amended answer pleaded rescission by agreement of parties. But this defence was waived at the trial, and the *10defendant Joseph H. Barowsky “ who acted for all the defendants in the transaction, testified that up to the time that the plaintiff in the latter part of February demanded and received the return of the warehouse receipt ... he was willing to pay for the Enters provided he could secure railroad transportation, that because of railroad embargoes on freight he was unable to remove the Enters . . . that he was not willing to pay ... in advance of removal, and that so far as the plaintiffs [sftfi] were concerned the goods were ready for delivery.”
The contract was not subject to any of the conditions relied on by the defendants as an excuse for nonperformance. If the jury, under the first and second counts to recover the price, found that title had not passed, there was evidence for their consideration, that beginning within one week from January 13 “ during which time delivery is to be taken of the Enters ” as stated in the letter of the plaintiff to Tuller bearing even date with the invoice, and continuing to February 27 when the plaintiff withdrew the warehouse receipt, the defendants on their own admission declined to perform, when all that remained to be done was to , accept delivery, remove the Enters, and pay the balance of the purchase price. The judge under such circumstances rightly refused to rule, that, if the plaintiff is entitled to damages based on the difference between the contract price and the market price, he is entitled to not more than nominal damages, and “ the most that the plaintiff can recover in this case is nominal damages.” While the evidence on the measure of damages was conflicting, the jury if they believed the plaintiff’s testimony could say there was no market for the Enters on February 27, and that “ they were worth nothing.”
The instructions to which the defendants excepted were sufficiently full, and show no reversible error. G. L. c. 106, § 53, cl. 2. Bartlett v. Blanchard, 13 Gray, 429, 430. Houghton v. Furbush, 185 Mass. 251. Barrie v. Quinby, 206 Mass. 259, 268. Edelstone v. Schimmel, 233 Mass. 45, 50.
The judge subject to the defendants’ exception also instructed the jury, that they could include in the assessment storage charges by the warehouse for ten months from *11February ■ 10 amounting to $88. This instruction was limited to the third count, even if the evidence when admitted was confined to the first and second counts. It is contended first, that the charge for storage was in the nature of special damages which are not recoverable because not alleged in the declaration. Warner v. Bacon, 8 Gray, 397, 400. But, the attention of the judge not having been called to any question of pleading, or to the sufficiency of the declaration in this particular, the question is not open on the record for reasons stated in Oulighan v. Butler, 189 Mass. 287, 289. Garfield v. Peerless Motor Car Co. 189 Mass. 395, 404. It is next contended that, apart from any question of pleading, the defendants were not liable for storage, the period of which seems to have been unquestioned. The charges were not recoverable under the terms of the contract, Bartlett v. Blanchard, 13 Gray, 429, 430. Lonergan v. Waldo, 179 Mass. 135, 139. National Coal Tar Co. v. Malden & Melrose Gas Light Co. 189 Mass. 234, 237. Learned v. Hamburger, 245 Mass. 461. See Peak v. Frost, 162 Mass. 298, and the evidence was inadmissible under the first and second counts for goods sold and delivered. The defendants, if there was a sale, and not the plaintiff, were liable thereafter for storage, and the record fails to show that at any time the jury were instructed to disregard this evidence as to those counts. Learned v. Hamburger, supra. It is urged by the plaintiff that he can hold the verdict under the third count. West v. Platt, 127 Mass. 367, 373. Bergeron v. Forest, 233 Mass. 392, 397, 398. But it is unnecessary to decide whether the breach of the agreement as declared on in the third count, to accept and receive the linter, might in the circumstances shown by the record enable the plaintiff to recover storage charges as damages under G. L. c. 106, § 53 (1), (2), (3), and (4), and § 59. Hanson & Parker, Ltd. v. Wittenberg, 205 Mass. 319; Rosenthal v. Green, 247 Mass. 153. The verdict is a general verdict, and, when applied to all the counts, it is plain, that the question affects only the measure of recovery.
. The exceptions to the refusal to direct a verdict for the defendants, and to rule, that on all the evidence the verdict should be for the defendants, as well as the exceptions to *12the denial of the defendants’ motion for a new trial, not having been argued must be treated as waived.
If the plaintiff within ten days after date of the rescript files in the Superior Court a remittitur of $88, the entry will be, exceptions overruled; but, if not so filed, the entry will be, exceptions sustained. G. L. c. 231, § 125. Donovan v. Walsh, 238 Mass. 356, 362.
So ordered.