Haenggi

In its background this case is like Sacramento Suburban Fruit Lands Co. v. Melin (C. C. A. No. 5671) 36 F.(2d) 907 , this day decided. Several assignments are relied upon by appellant, but we deem it necessary to refer to only those which have to do with instructions *924 relative to “commercial orcharding,” a subject briefly commented upon in the Nelson Case (C. C. A. No. 5683) 36 F.(2d) 929 , this day decided.

In addition to the consideration suggested in the Nelson Case, it is important to note that in the complaint here there is no averment of a representation by defendant touching the profits that would or could be realized from the raising of fruit upon the land in question or any other land. The representations alleged are: “That all of the land thereof was rich and fertile and was capable of producing all sorts of farm crops and products; that said land was entirely free from all conditions and things injurious or harmful to the growth of fruit-trees; that said land was perfectly adapted to the raising of fruits of all kinds; and that said land was capable of producing large crops of any kind of fruit planted thereon; and that said crops weré of the finest quality.” And…