Brackett

The complaint alleges that in February, 1896, the defendant sold and delivered to plaintiff one thousand French prune trees, and at the same time warranted to the plaintiff that they were merchantable French prune trees properly budded on Myrobolan roots; that plaintiff relied solely upon said warranty and paid defendant the .price therefor, $45; that all of said trees were not merchantable French prune trees, properly budded, nor were either or any of them properly budded on Myrobolan roots, but that they were all and each of them budded in an improper manner on an inferior and worthless root, and of no value whatever to plaintiff.

That plaintiff planted the said trees upon land owned by him in March, 1896, but that at no time subsequent to the sale did plaintiff discover, nor had he any means or opportunity by ordinary diligence of discovering, that said trees were not of the variety so ordered and paid for by plaintiff, to wit, merchantable French prune trees properly budded on Myrobolan roots, as represented and warranted by defendant, until the fall of 1899, when the said trees began rapidly to die.

That plaintiff’s land with said worthless and inferior variety growing…