Blackmer

The plaintiff commenced an action against the defendant to recover $3,316.20, alleged to be the balance due and owing to him for a lot of walnut-trees sold and delivered. The defendant answered and filed a cross-complaint. The plaintiff answered the cross-complaint and a trial was had before the trial court sitting without a jury. The trial court made findings of fact and ordered judgment entered in behalf of the plaintiff as prayed. Prom that judgment the defendant has appealed and has brought up the judgment-roll.

Prom the pleadings it can be ascertained that the plaintiff is a nurseryman and engaged in rooting and grafting walnut-trees. On the 18th of' November, 1919, the defendant and plaintiff entered into a written contract for the purchase and sale of 5,000 “Placentia Perfection Walnut Trees grafted on Royal Hybred, Black Walnut root; the same now being situate on Lot Number 118, Tapo Ranch, for delivery spring 1921 for the price of $1.50 per tree, trees to be eight feet and up, consecutively; trees to be free from insect pest or disease, and to pass County Horticultural inspection. Twenty-five per cent of the purchase price, or $1875, at the time this contract is made and…