Sweet v. Watson's Nursery

BARNARD, P. J.

This is an action for damages for breach of warranty in the sale of orange trees. The trial court ordered a nonsuit on the ground that the action was barred by subsection 1 of section 339 of the Code of Civil Procedure, and from the judgment which followed this appeal was taken.

In March, 1931, the respondents sold to the appellant 1122 orange trees, warranted to be Valencias, at 900 per tree, the contract being oral. The appellant testified and the respondents agreed that it is impossible to tell a Navel orange tree from a Valencia orange tree until fruit thereon reaches a certain development which occurs in the month of October of the year when the tree first bears fruit. These trees were

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set out in the spring of 1931 and forty of them bore some fruit in 1932, which in October of that year turned out to be Navel oranges, no other trees having then borne any fruit. On October 26, 1932, the appellant wrote to the respondents informing them that a great number of the trees had borne Navel oranges, that he believed that a large number of them would prove to be Navel orange trees, and that he intended to ask for a settlement in the matter. In October, 1933, an additional 660 trees bore Navel oranges, at which time only 125 of the trees were bearing Valencia oranges. In October, 1934, another 131 trees were bearing Navel oranges and only 127 of the trees were bearing Valencia oranges. A few of the trees were dead and the rest had borne no fruit. This action was begun on January 31, 1935, more than two years after the discovery that forty of the trees were not as warranted but within two years after the discovery that some 800 others did not comply with the warranty.

The appellant contends that the contract for the sale of the trees was severable and that the statute of limitations would not start running as to each tree or group of trees until the breach of warranty was discovered as they first produced fruit. The respondents argue that a breach of the contract occurred in October, 1932, when it was discovered that some of the trees were not as represented, that the appellant then knew that the warranty had been breached, and that the statute then began to run as to the entire contract.

It is well settled that the statute of limitations against an action for breach of warranty in the sale of fruit trees does not commence to run until the true facts appear, when the trees first bear fruit.