Gray

The plaintiff and the appellants made the following agreement at Armona, in the county of Tulare, December 2, 1891:

On or about the 1st of January, 1892, the defendants went to the nursery of the plaintiff at Armona, and examined the stock of trees covered by the agreement, and, after such examination, accepted fifteen thousand and fifty-eight of them, and the same were thereupon shipped by railroad to the defendants at Fresno. After the trees had been received at Fresno one of the members of the county board of horticultural commissioners of Fresno county examined them, and, finding that many of them were affected with black knot, notified the defendants that the trees could not be planted in that county, and, under his directions, the defendants shipped back to the plaintiff, six thousand one hundred and fifty-three of the trees. The plaintiff refused to recognize the right of the defendants to return the trees, and the defendants refused to pay for them; whereupon this action was brought to recover the amount due for all the trees that had been accepted by the defendants at the price named in the contract. Judgment was rendered in favor of the plaintiff, and the defendants…