Elmer Bros. v. Carpenter

[207]

BURNETT, J.

The action was brought on two promissory notes given in consideration for the sale by plaintiff to defendant of about one thousand two hundred fruit trees. The defense was based upon the claim of the violation of an express warranty as to the quality of the trees. There were two counts in the complaint relating separately to the two notes and as to the first the court found: “That the said note referred to in paragraph II of these findings was wholly without any consideration whatever, in this, that the said note was executed by this defendant for fruit trees bought from the plaintiff by the said defendant; that the said purchase was made prior to the delivery and inspection of the said fruit trees; that the plaintiffs and each of them represented to the defendant that the fruit trees aforesaid were good, sound and healthy fruit trees and were not diseased; that this defendant believed the representations of the said plaintiffs and each of them; and relied implicitly upon their representation that the said fruit trees were good, sound and merchantable fruit trees and relying upon said representations which he believed at the date he executed the said note he did excute the same to the said plaintiffs; that the said fruit trees were not merchantable trees and were diseased with a black rot and were prohibited from being sold or planted or used as such fruit trees under the provisions of section 2322 of the Political Code of the state of California, (Stats. 1917, p. 627), and under the provisions of 2322i of the said Political Code, (Stats. 1917, p. 637), the said trees were condemned as not merchantable.”

The finding as to the second count is similar except that it appears the defendant sold to other parties a portion of the trees, receiving therefor the sum of $52.60, and hence the judgment was in favor of plaintiff for that sum. Being dissatisfied, it appealed therefrom.

Appellant says: “The sole question to be determined by this court in this matter is whether or not an implied warranty arose from the transaction in question. The lower court specifically found that there was an implied warranty that the fruit trees sold by plaintiffs to defendant for which the notes were given were merchantable, and that the consideration for said notes failed by reason of the unmerchantable character of said trees sold.”