Daley

This is the second appeal in the above-entitled action. (Daley v. Irwin, 56 Cal. App. 325 [ 205 Pac. 76 ].) The general facts are fully stated in that decision and need not be repeated. After the first appeal had been decided the ease was tried again in the trial court sitting with a jury. When the plaintiff rested and before the defendant commenced to introduce any proof the defendant made a motion for a nonsuit. The motion was granted and a judgment was entered in favor of the defendant. Prom that judgment the plaintiff has appealed and has brought up a bill of exceptions.

Before proceeding further it becomes necessary to advert to the peculiar condition of the pleadings. In his complaint the plaintiff pleaded the mating of the contract with the defendant for the purchase of a large quantity of barley for seed. He pleaded facts showing that the defendant warranted the seed as recleaned. Thereupon he pleaded a breach of the contract by delivery of uncleaned barley. He followed those allegations with numerous allegations of consequential damage. However, he did not insert any allegations regarding nominal damages or regarding general damages. The defendant interposed an answer…