Herrington

This action was on contract. The complaint alleged that plaintiff and defendant entered into an agreement whereby defendant purchased from plaintiff all the trees in the nursery of plaintiff at Glendora, California, which on or about July 1, 1912, should be of a specified size, it being understood that the nursery contained eight thousand trees of three different varieties of citrus fruit trees, the price being sixty-five cents per tree; that defendant agreed to remove all the trees from said nursery on or before July 1, 1912, and to make therefor certain payments on designated dates up to May 1, 1912, and the balance as the trees were removed from the nursery which was to be not later than July 1, 1912; that plaintiff agreed to “irrigate, cultivate, and care for said nursery stock at his own expense and in a good and husbandlike manner until July 1, 1912,” which the complaint alleged he had done, and further, that he had duly performed all the conditions of the contract on his part to be performed; that on or about July 1, 1912, defendant removed all but 3,763 trees from said nursery, refused to remove any more of them or to pay the balance of $2,604.35 due therefor under the…