Sales—Budded French Prune Trees—Implied Warranty of Kind— Finding—Presumption.—'Upon, a request for the sale of French prune trees, properly budded on Myrobolan roots, the only warranty implied is that they are of that kind or character. Where the court found that the trees sold were French prune trees budded on such roots, without finding whether or not they were properly budded, it must be presumed that they were properly budded.

Id.—Merchantability not Warranted—Purchase of Smallest Trees—Expression of Opinion—Finding Against Evidence.— Where the evidence showed that plaintiff purchased cheap trees of the smallest, lowest grade in the nursery, without agreement as to the length of time they would continue to grow, and that defendant merely expressed the opinion that the trees were good trees, if taken care of, a finding that defendant warranted them to be merchantable is against the evidence.

Id.—Date of Merchantability—Death of Trees After Three Tears’ Growth—Presumption,—It is not a presumption of law or of fact that a fruit tree sold in February, 1896, was not then merchantable, because, after growing during four summers, on plaintiff's soil, under which lay a deep stratum of blue clay, it died thereon in the fall of 1899.

Id.—Warranty of Life' and Growth.-—Even if the defendant had expressly warranted in writing to plaintiff that the trees sold would live and grow, that would not mean a warranty to the plaintiff that they would always live and grow on his land.

Id.—-Action upon Parol Warranty of Merchantability—Statute of Limitations—Time of Operation—Breach—Discovery.—In an action upon an alleged parol warranty of merchantability of the trees sold, the two years' statute of limitations under subdivision 1 of section 339 of the Code of Civil Procedure applies, and began to run from the date of the breach, when nonmerchantable trees were sold and delivered, and not from the time of the death of the trees after three years’ growth on plaintiff’s land, when plaintiff claimed that the nonmerchantability was first discovered by him.