Firth v. Richter

CONREY, P. J.

Action to recover damages resulting from breach of warranty. The defendant appeals from the judgment.

The action is based upon a. contract dated February 28, 1912, which, as written, was entered into between the defendant as party of the first part and. E. J. Wilson and J. P. Firth as parties of the second part. It was provided therein “that the party of the first part agrees to sell and the parties of the second part agree to buy nine hundred and ninety-six (996) Valencia orange trees, running in size

y2

inch and up, said trees grown by O. M. Bert, near his pumping plant. Price to be paid for trees, One, twenty-five cents ($1.25) f. o. b. trees to be balled and scrubbed and defoliated delivered f. o. b. in good condition and to pass inspection before shipping.” It will be noted that the action is brought by Firth and Wilson and by George H. Bradley as copartners. It was alleged in the complaint that the plaintiffs are, and at all times mentioned therein were, copartners doing business under the firm

[547]

name and style of the Dry Bog Orange Company, and that they had filed with the county clerk of Tulare County the certificate required by sections 2466 and 2468 of the Civil Code, and have in all other respects complied ■ with the provisions of said sections of the Civil Code; that the plaintiffs, as such copartners, are, and at all of said times were, the owners of certain described real property in the county of Tulare, which land was specially adapted to the growing of citrus fruits; that said agreement was made for and on behalf of and as the agreement of all the plaintiff^ as copartners, and that the trees to be purchased under the terms of the agreement were purchased for the purpose of planting same upon said real property; that under the terms of said agreement the defendant delivered to the plaintiffs 996 orange trees which were accepted and paid for. It was further alleged: “That at the time of the delivery of said orange trees by said defendant, the said defendant represented said trees to be Valencia orange trees as provided in said contract hereinabove set forth, and that said plaintiffs accepted said orange trees relying on the representation of said defendant that they were Valencia orange trees. That at the time of the delivery of said orange trees it was impossible to tell or determine what kind of oranges said trees would bear, and that the said plaintiffs accepted said orange trees and planted all thereof upon the real estate hereinabove described, relying upon the contract hereinabove set forth and upon the representation of said defendant that said trees were Valencia orange trees; that the plaintiffs did not know and had no means of ascertaining whether or not the trees were of the kind as ordered by them and as represented by the defendant at the time of.their delivery, and that the said plaintiffs in accepting said trees and in planting the same upon said real property relied upon the terms 'of said agreement and upon the warranty and representation of defendant that all of said orange trees were Valencia orange trees.” Further facts are alleged to the effect that in the fall of 1915 a part of the trees for the first time bore fruit, and in the fall of 1916 the remainder of the trees for the first time bore fruit, at which time it was for the first time discovered and for the first time became possible for the plaintiffs to discover that 183 of said trees were navel orange trees and not Va