Sumida

In the month of January, 1907, the defendants sold and delivered to the Fowler Nursery and Warehouse Company of the city of Fresno some forty-seven thousand rooted vines at the agreed price of $11 per thousand, which was finally and fully paid to the defendants. The present action arises out of that transaction, and is for damages alleged to have been sustained by the purchaser because of the alleged breach by the defendants of a covenant of warranty which, it is claimed, accompanied and was made a part of the contract of sale. In that behalf the plaintiff’s complaint in substance alleges that at the time of the sale, and as a part of the consideration for the purchase price thereof, the defendants covenanted and agreed with the purchaser that the vines and all of them should be Malaga rooted vines and of no other variety; that when delivered they should be true to name; that defendants warranted said vines to be Malaga rooted vines and no other, and that the purchase price was paid because of such warranty; that all of the vines delivered to the purchaser were not Malaga rooted vines, but that contrary to the covenant of warranty about twenty thousand of said vines were of a…