Braley, J.
The first count of the declaration in the first action is on an account annexed, for goods sold and delivered under contracts hereinafter described, while the second and thud counts are for breach of agreements by the defendants to buy twenty-one hundred cases of shoes, which have become immaterial by reason of the findings and rulings [468]*468to which Learned did not except. A fourth count was subsequently allowed which followed substantially the findings, and may be considered with the first count as supporting the general findings. The answer is a general denial, with a claim that the sales were by sample with which the goods delivered did not correspond, and that they were not merchantable, with a claim in recoupment for damages.
In the second action the ten counts of the declaration after stating the contracts relied on in the first count in the first action, alleged a failure to deliver shoes in conformity therewith, as well as a partial failure to make any delivery whatever, and for damages for Learned’s breach of the contracts. The cases were tried without a jury, and the findings of fact and rulings of law made by the presiding judge under which he found for George A. Learned in each case are incorporated in the exceptions of the Hamburgers.
If it be assumed that all the material evidence is referred to in the exceptions, the judge was not bound to believe even uncontradicted evidence, and could accept or reject in whole or in part the testimony of the witnesses. Linderbaum v. New York, New Haven & Hartford Railroad, 197 Mass. 413.
We shall hereafter refer to George A. Learned as the plaintiff and to the Hamburgers, who are partners, as the defendants. The plaintiff, a shoe manufacturer, received and accepted from the defendants on April 25, 1918, orders in writing “ for seven pairs, later increased to twelve pairs, of each of nine styles of shoes, the stock numbers, kinds and prices of which ” are enumerated, with a full description of their varigated colors. The order contained the words “ All cases on above to run no poorer than sample submitted.” But it is found that the seven or twelve pairs, were only part of a “ case ” of shoes, which were intended by the defendants to be used as samples in taking orders from retailers, and a “ case ” of shoes- as the word was used by the parties contained thirty-six pairs. The plaintiff on the same date received and accepted orders in writing from the defendants for the manufacture and delivery of eleven hundred cases, each' case containing thirty-six pairs consisting of nine different styles of shoes as specified, delivery to [469]*469be made on August 1, August 15, and September 1, 1918, which are designated as the “ larger orders.” The orders were placed “ subject to details, quality and delivery as stated. Any unfilled portion of same is to be considered cancelled if not delivered by ” the dates specified.
A schedule showing the stock numbers, the number of cases, the price of each pair, and the date of delivery makes plain the details of the transaction. It is followed by another schedule giving the number of cases ordered, the number of cases “ cut ” by the plaintiff, the number of cases not delivered, the number of cases delivered but returned to the plaintiff, the number of cases sold to other customers by the plaintiff, the number of cases in the plaintiff’s possession November 15, 1919, the date when the plaintiff brought suit, the number delivered to the defendants and not returned, the number in their possession at that date, the number retained and not paid for, the number included in the plaintiff’s declaration but balanced by conceded credits, and the number of cases included in the first count of the plaintiff’s declaration. The issues as well as the extent of the controversy are shown by these schedules, which were used by the judge in his consideration and analysis of the contentions of the parties, and in the assessment of damages.
The findings and rulings that “ the large order was not limited as to the make of leather,” and that the agreement that “ All cases on above to run no poorer than sample ” or small order did not limit the plaintiff as to the make of leather to be used in the large order, and that the sales were by description and not by sample, do not appear to be erroneous as matter of law. Gould v. Stein, 149 Mass. 570. Weston v. Barnicoat, 175 Mass. 454.
The only warranty therefore, as the court found and ruled, was an implied warranty that the shoes were of merchantable quality. G. L. c. 106, § 17, cl. 2. Fullam v. Wright & Colton Wire Cloth Co. 196 Mass. 474, 476. The ruling that if the warranty was broken, the damages consisted of “ the difference between the actual value of the article sold and the value of the same article if it had been such as the [470]*470vendor warranted it to be,” and “ the application of this rule is not changed nor modified by the fact that a purchaser of a warranted article had sold it for the same or even a greater price than that which he paid for it ” was correct. F. W. Stock & Sons v. Snell, 226 Mass. 499, 504. Parker v. S. G. Shaghalian & Co. Inc. 244 Mass. 19.
The defendants by their fifty-sixth request asked for a ruling that if the plaintiff “ failed to deliver the merchandise which Hamburger was entitled to have delivered under the contract at the time and in the quantity which the contract called for, then Hamburger is entitled to recover as one of the elements of his damage the loss of his profits and the expenses actually incurred on sales actually made.” The judge found, however, that the dates of delivery had been waived, and the finding of waiver was a question of fact well warranted by the record. The eighth request, that acceptance of merchandise delivered after the date specified is a waiver only as to such merchandise actually so delivered and accepted, is of no consequence because of the general finding. And there was no finding of any “ proximate damage,” or any evidence of such damage under the further provisions of G. L. c. 106, § 58, cl. 7. The requests were denied rightly.
The defendants claimed and were awarded damages for breach of the warranty of merchantability. It is contended that the quantity of shoes on which the damages found were based was wrongly computed and should be very substantially increased. The plaintiff began to manufacture the shoes immediately after the order had been accepted, and the shipments began in July and continued through October 1918. The defendants are found to have accepted the shipments as they came in, with the exception of a few cases which were returned with a complaint that the dressing on some of the grey and plain kid shoes was imperfect. The defendants under G. L. c. 106, § 37, are found to have accepted all the shoes which were delivered, except thirteen cases returned and credited by the plaintiff. It is further found that the first notice of the defendants’ claim for breach of warranty, except as to the shoes first mentioned, was [471]*471October 19, 1918, when they wrote the plaintiff cancelling the remainder of the order, and requesting him to cease further shipments. The letter, however, contains no reference to any right of rescission or offer to return preceding deliveries, and both before and after the order of cancellation the defendants constantly offered the shoes for sale and sold “
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Braley, J.
The first count of the declaration in the first action is on an account annexed, for goods sold and delivered under contracts hereinafter described, while the second and thud counts are for breach of agreements by the defendants to buy twenty-one hundred cases of shoes, which have become immaterial by reason of the findings and rulings [468]*468to which Learned did not except. A fourth count was subsequently allowed which followed substantially the findings, and may be considered with the first count as supporting the general findings. The answer is a general denial, with a claim that the sales were by sample with which the goods delivered did not correspond, and that they were not merchantable, with a claim in recoupment for damages.
In the second action the ten counts of the declaration after stating the contracts relied on in the first count in the first action, alleged a failure to deliver shoes in conformity therewith, as well as a partial failure to make any delivery whatever, and for damages for Learned’s breach of the contracts. The cases were tried without a jury, and the findings of fact and rulings of law made by the presiding judge under which he found for George A. Learned in each case are incorporated in the exceptions of the Hamburgers.
If it be assumed that all the material evidence is referred to in the exceptions, the judge was not bound to believe even uncontradicted evidence, and could accept or reject in whole or in part the testimony of the witnesses. Linderbaum v. New York, New Haven & Hartford Railroad, 197 Mass. 413.
We shall hereafter refer to George A. Learned as the plaintiff and to the Hamburgers, who are partners, as the defendants. The plaintiff, a shoe manufacturer, received and accepted from the defendants on April 25, 1918, orders in writing “ for seven pairs, later increased to twelve pairs, of each of nine styles of shoes, the stock numbers, kinds and prices of which ” are enumerated, with a full description of their varigated colors. The order contained the words “ All cases on above to run no poorer than sample submitted.” But it is found that the seven or twelve pairs, were only part of a “ case ” of shoes, which were intended by the defendants to be used as samples in taking orders from retailers, and a “ case ” of shoes- as the word was used by the parties contained thirty-six pairs. The plaintiff on the same date received and accepted orders in writing from the defendants for the manufacture and delivery of eleven hundred cases, each' case containing thirty-six pairs consisting of nine different styles of shoes as specified, delivery to [469]*469be made on August 1, August 15, and September 1, 1918, which are designated as the “ larger orders.” The orders were placed “ subject to details, quality and delivery as stated. Any unfilled portion of same is to be considered cancelled if not delivered by ” the dates specified.
A schedule showing the stock numbers, the number of cases, the price of each pair, and the date of delivery makes plain the details of the transaction. It is followed by another schedule giving the number of cases ordered, the number of cases “ cut ” by the plaintiff, the number of cases not delivered, the number of cases delivered but returned to the plaintiff, the number of cases sold to other customers by the plaintiff, the number of cases in the plaintiff’s possession November 15, 1919, the date when the plaintiff brought suit, the number delivered to the defendants and not returned, the number in their possession at that date, the number retained and not paid for, the number included in the plaintiff’s declaration but balanced by conceded credits, and the number of cases included in the first count of the plaintiff’s declaration. The issues as well as the extent of the controversy are shown by these schedules, which were used by the judge in his consideration and analysis of the contentions of the parties, and in the assessment of damages.
The findings and rulings that “ the large order was not limited as to the make of leather,” and that the agreement that “ All cases on above to run no poorer than sample ” or small order did not limit the plaintiff as to the make of leather to be used in the large order, and that the sales were by description and not by sample, do not appear to be erroneous as matter of law. Gould v. Stein, 149 Mass. 570. Weston v. Barnicoat, 175 Mass. 454.
The only warranty therefore, as the court found and ruled, was an implied warranty that the shoes were of merchantable quality. G. L. c. 106, § 17, cl. 2. Fullam v. Wright & Colton Wire Cloth Co. 196 Mass. 474, 476. The ruling that if the warranty was broken, the damages consisted of “ the difference between the actual value of the article sold and the value of the same article if it had been such as the [470]*470vendor warranted it to be,” and “ the application of this rule is not changed nor modified by the fact that a purchaser of a warranted article had sold it for the same or even a greater price than that which he paid for it ” was correct. F. W. Stock & Sons v. Snell, 226 Mass. 499, 504. Parker v. S. G. Shaghalian & Co. Inc. 244 Mass. 19.
The defendants by their fifty-sixth request asked for a ruling that if the plaintiff “ failed to deliver the merchandise which Hamburger was entitled to have delivered under the contract at the time and in the quantity which the contract called for, then Hamburger is entitled to recover as one of the elements of his damage the loss of his profits and the expenses actually incurred on sales actually made.” The judge found, however, that the dates of delivery had been waived, and the finding of waiver was a question of fact well warranted by the record. The eighth request, that acceptance of merchandise delivered after the date specified is a waiver only as to such merchandise actually so delivered and accepted, is of no consequence because of the general finding. And there was no finding of any “ proximate damage,” or any evidence of such damage under the further provisions of G. L. c. 106, § 58, cl. 7. The requests were denied rightly.
The defendants claimed and were awarded damages for breach of the warranty of merchantability. It is contended that the quantity of shoes on which the damages found were based was wrongly computed and should be very substantially increased. The plaintiff began to manufacture the shoes immediately after the order had been accepted, and the shipments began in July and continued through October 1918. The defendants are found to have accepted the shipments as they came in, with the exception of a few cases which were returned with a complaint that the dressing on some of the grey and plain kid shoes was imperfect. The defendants under G. L. c. 106, § 37, are found to have accepted all the shoes which were delivered, except thirteen cases returned and credited by the plaintiff. It is further found that the first notice of the defendants’ claim for breach of warranty, except as to the shoes first mentioned, was [471]*471October 19, 1918, when they wrote the plaintiff cancelling the remainder of the order, and requesting him to cease further shipments. The letter, however, contains no reference to any right of rescission or offer to return preceding deliveries, and both before and after the order of cancellation the defendants constantly offered the shoes for sale and sold “ the great majority of the cases ” to their customers. The defendants moreover having sold at least a part of the shoes could not rescind. They could not affirm the contracts in part, and enforce them in part. Minor v. Bradley, 22 Pick. 457, 458. It was correctly held that the acceptance of the shoes did not bar the defendants of their claim for damages for breach of the implied warranty of merchantability. G. L. c. 106, § 58, cl. 1, (a) (b). But the statute also expressly provides in § 58, 3 cl., that “ If the goods have been delivered to the buyer, he cannot rescind the sale if he knew of the breach of warranty when he accepted them, or if he fails to notify the seller within a reasonable time of the election to rescind, or if he fails to return or to offer to return the goods to the seller in substantially as good condition as they were in at the time when the property passed. ...” Gascoigne v. Cary Brick Co. 217 Mass. 302. Trimount Lumber Co. v. Murdough, 229 Mass. 254. And there was no express or implied agreement shown affecting the statutory rule.
The case accordingly is narrowed to the following findings: that independently of the plain kid shoes of which notice was received somewhat earlier, the first notice to the plaintiff for any claim for damages was on October 19, 1918, and that the defendants had failed to give notice to the seller of the alleged breach within a reasonable time after they knew, or ought to have known of such breach as to all plain kid shoes shipped before September 1, 1918, and as to all other shoes shipped before September 19, 1918. Trimount Lumber Co. v. Murdough, supra. Skillings v. Collins, 224 Mass. 275. The defendants’ thirteenth request that “ Any materially defective delivery of shoes gave Hamburger the right to cancel the contract and return the shoes already delivered,” and the fifty-ninth request that if the plaintiff was in default in the performance of the contract “ Hamburger [472]*472was entitled ” to return the merchandise “ which he had on hand, and to recover the purchase price so far as the same had been paid,” and the forty-first request that it is sufficient “ to enable Hamburger to rescind the contract if he offers to return the merchandise delivered to him ” and the fifty-ninth request that “ If Learned was in default in the performance of the contract, Hamburger is entitled to return the merchandise which he has on hand and to recover the purchase price therefor so far as the same has been paid,” were denied rightly for reasons previously stated.
The defendant argues that the case as to damages is governed by G. L. c. 106, § 33, cl. 1. “ If the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them, but if the buyer accepts or retains the goods so delivered, knowing that the seller will not perform the contract in full, he shall pay for them at the contract rate. If, however, the buyer has used or disposed of the goods delivered before he knows that the seller will not so perform, the buyer shall not be liable for more than the fair value to him of the goods so received.” The findings previously referred to dispose of this contention. The plaintiff did deliver in quantity the goods he contracted to sell, and the defendants accepted them until they can-celled the contract, and there was no acceptance by the defendants with knowledge that the plaintiff would not perform his contract in full. It is manifest that title passed, and the case at bar is not the case of delivery of a smaller quantity of goods than the amount bargained for, and the seller by his failure being in default can recover only for goods delivered which are identical in description and quantity with the goods sold. Rodman v. Guilford, 112 Mass. 405. Rock Glen Salt Co. v. Segal, 229 Mass. 115. The fifth and fourteenth requests that “ Hamburger is not required to accept any merchandise in quantities than those specified in the contract,” and that the plaintiff “ had no right to hold Hamburger to accept and pay for a lesser quantity of shoes than the contract called for,” were statements of law not applicable to the case on the findings.
The question of reasonable time and whether there had [473]*473been any tender or attempt at rescission were also on the record issues of fact, and the findings which are adverse to the defendants are conclusive. Trimount Lumber Co. v. Murdough, supra. American Malting Co. v. Souther Brewing Co. 194 Mass. 89. G. L. c. 106, § 58, cl. 3. See Williston on Sales, § 451, notes 33, 34.
The- twenty-fifth, twenty-sixth and twenty-seventh requests, quoted above on pages 466, 467, ante, were rendered inapplicable by reason of the findings as to acceptance, and the finding that there was no express or implied agreement affecting the statutory rule. The judge found, and this also was a question of fact, that the defendants having failed to give notice within a reasonable time after they knew or ought to have known of the breach as to all plum colored shoes shipped before September 1, 1918, and as to all other shoes shipped after September 19, 1918, rightly held that the defendants could not recover damages for shoes shipped earlier than those dates. G. L. c. 106, § 38.
The refusal of the eleventh request, quoted on page 466, ante, requires no-comment because of the previous discussion. It is also plain that the defendants cannot recover as an element of damage the cost of insuring or storage of their own goods, and the refusal of the fifty-ninth request based on the grounds just stated is not shown to have been erroneous. It cannot be assumed in view of the findings to which reference has been made, that the judge erred as matter of law when he limited the defendants' recovery to shoes shipped after September 19, 1918, the numbers of which with the damages assessed for each pair are specifically stated, the amount computed being insufficient to offset the amount the plaintiff was found entitled to recover on the first and fourth counts, increased by nominal damages under the second count of his declaration, a general finding for him in each case was made rightly. Cook v. Castner, 9 Cush. 266, 278. Star Glass Co. v. Morey, 108 Mass. 570, 573.
The record contains sixty-two requests of the defendants for rulings of which the fifty-second, fifty-third, fifty-fourth and fifty-fifth were waived after the trial. The judge gave the ninth, twelfth, thirty-first, thirty-third, thirty-fourth, [474]*474thirty-sixth, thirty-ninth and fifty-eighth requests, but declined to give the remaining requests, “ not always because they are not abstractly correct, but often because they are based on facts which I do not find. In so far as they are based on facts not appearing in the findings, . . . I do not find such facts to exist.” We have examined in so far as they have been argued all the requests which were not given and the rulings to which the defendants excepted, and finding no reversible error the exceptions should be overruled.
So ordered.