Cole

This action is predicated upon a refusal of payment of a cheek given in part payment for 1,387 orange trees of nursery stock. Right of recovery in plaintiff depends upon whether or not the trees were warranted by him to be free from scale. The findings of the trial court were to the effect that the trees were so warranted, but, as a matter of fact, that the trees were so diseased. Judgment was ordered in favor of defendant, and plaintiff appeals therefrom.

Appellant’s sole point in substance is that the evidence does not justify the conclusion that plaintiff warranted the trees to be free from scale and that defendant relied thereon. The negotiations for the purchase of the trees extended over a period of several days. From the evidence it appears that each of the parties was an experienced nurseryman; that defendant, in company with a deputy horticultural commissioner, visited plaintiff’s place of business for the purpose of examining a certain nursery stock of orange trees with the ultimate purpose on defendant’s part of purchasing same; that scale was detected on the trees, and the question was raised among the persons present as to whether or not the trees, being so infected,…