Eells

Action to recover the value of certain nursery-stock, consisting of budded walnut trees, alleged to have been sold and delivered to defendant at its special instance and request.

Judgment was rendered for plaintiff. The appeal is from the judgment and an order denying defendant’s motion for a •new trial. Defendant offered no evidence, and the only point which it urges as ground for reversal is that the court erred in denying defendant’s motion for a nonsuit.

Defendant is a corporation and, as shown by the evidence, the owner of a twenty-four acre orchard in Orange county, which for ten or twelve years prior to the commencement of this suit had been in the care and under the management of one William E. Case. The trees were delivered to defendant at the request of Case, who, pursuant to oral instructions given him by the secretary of the corporation, and acting on its behalf, ordered them delivered at defendant’s orchard, and the fair inference from the evidence is that upon their delivery he planted them upon defendant’s land, as he was instructed to do by defendant’s secretary. Subsequently, the bill for the trees was sent to defendant, who, on November 27, 1908, returned it to…