Colon

Defendant appeals from an order of court granting plaintiff’s motion for a new trial.

The action is one to recover damages alleged to have been sustained by reason of defendant delivering to plaintiff certain budded peach-tree stock of a variety other than and inferior to that agreed upon by the terms of a parol contract.

The only ground of the motion necessary to consider is the insufficiency of the evidence to justify the decision.

Under the agreement, the buds for all of said stock were to be procured from a certain designated peach tree in the orchard of a Mr. Frazier, which defendant believed to be of the variety known as the Early Alexander. Only part of said stock was budded from this tree; it was, in fact, of a variety known as the Early Imperial. The balance of such stock was of a variety known as the Early Alexander. Plaintiff planted the trees in orchard farm upon his land, setting eighty-two to the acre, with the two varieties standing and mingled together, there being at the time of the commencement of the action fifty-six Early Imperials and one hundred and forty-three Alexanders. The court found: “That neither such mingling of said trees, nor the fact that some,…