Waldteufel

This is an action upon two written contracts, one of which was alleged, in two different counts, to have been modified by oral agreement or given a construction by the parties somewhat at variance with the terms of the written contract. The second contract, with its breach by defendant, was set forth in two separate counts. Both agreements were for the sale and purchase of certain vineyard land, there being twenty acres in each tract, partly planted and partly not planted. The case was tried to a jury and plaintiff had the verdict. Judgment was entered thereon, from which defendant appeals. Of the first tract it was alleged that defendant had agreed to plant the land to muscat and emperor grape rootings, instead of which defendant planted the land to many different varieties of vines, inferior to muscats and emperors, and planted them in a “mixed up and jumbled together manner,” to plaintiff’s damage. Of the second tract it was alleged that defendant warranted that ten acres were planted to muscat vines; that plaintiff acted on such warranty; that the vines proved to be “a mixed up and jumbled together” lot of vines of many different varieties; that defendant’s representations…