Levy

This action is for damages for the breach of a general warranty, as provided by section 1771 of the Civil Code, that a certain quantity of milo purchased by plaintiffs from defendant was, at the time of said sale, in a sound and merchantable condition.

The defendant demurred to the first amended complaint on both general and special grounds, and the court sustained the demurrer, without leave to amend, and thereupon rendered judgment dismissing the action.

This is an appeal by the plaintiffs from said judgment.

The complaint, as amended, alleges:

As indicated above, the plaintiffs ground their action on section 1771 of the Civil Code, which reads as follows: "One who sells or agrees to sell merchandise inaccessible to the examination of the buyer, thereby warrants that it is sound and merchantable.”

In sustaining the demurrer the learned trial judge said: "The court is of the opinion that the complaint does not state facts sufficient to show that the goods sold were inaccessible to the examination of the buyer. They were only twelve miles away and he could have examined them had he taken the trouble to make a trip to Gerber. ’ ’

It is to be assumed from the foregoing…