Burge

This is an appeal by the defendant from a judgment in favor of the plaintiff.

The complaint alleges that by a certain written contract incorporated therein, the defendant sold to the plaintiff 1,750 French and Imperial prune trees grafted on myrobalan roots, guaranteed to be of that kind; that the trees were delivered to plaintiff in December, 1910; that they were in ‘fact grafted upon peach roots; “that plaintiff did not know, and had no means of ascertaining, whether or not the trees were as ordered by him, and as guaranteed by the defendant at the time of their delivery as aforesaid, and relied, in accepting them, solely upon said warranty and representations of defendant that all of said prune trees were on myrobalan roots”; that so believing, plaintiff planted all of said trees on his farm in Napa County in the spring of 1911; that he did not know, and had no means of ascertaining, whether or not said trees were on myrobalan roots, until the spring of the year 1913, when suckers from the roots disclosed the fact that they were grafted on peach roots and not on myrobalan roots; that said trees were purchased by him to plant on said farm, the soil whereof is unsuitable for the…