Herrington v. Baker

LORIGAN, J.

This action was on contract. The complaint alleged that plaintiff and defendant entered into an agreement whereby defendant purchased from plaintiff all the trees in the nursery of plaintiff at Glendora, California, which on or about July 1, 1912, should be of a specified size, it being understood that the nursery contained eight thousand trees of three different varieties of citrus fruit trees, the price being sixty-five cents per tree; that defendant agreed to remove all the trees from said nursery on or before July 1, 1912, and to make therefor certain payments on designated dates up to May 1, 1912, and the balance as the trees were removed from the nursery which was to be not later than July 1, 1912; that plaintiff agreed to “irrigate, cultivate, and care for said nursery stock at his own expense and in a good and husbandlike manner until July 1, 1912,” which the complaint alleged he had done, and further, that he had duly performed all the conditions of the contract on his part to be performed; that on or about July 1, 1912, defendant removed all but 3,763 trees from said nursery, refused to remove any more of them or to pay the balance of $2,604.35 due therefor under the contract, and plaintiff sued to recover that amount.

Defendant in his answer denied that plaintiff had “irrigated, cultivated, and cared for said nursery stock at his own expense in a good and husbandlike manner,” and as to the trees, the purchase price of which was sought in the action, alleged, among other things, that said trees had not been and are not of a kind or character referred to in said contract; that they have not been and are not up to the standard prescribed in said contract, and have not been and are not fit for the purposes of removal, and for the purposes for which defendant contracted to take them.

Judgment was given the plaintiff for the amount prayed for. Defendant appeals from said judgment and an order denying his motion for a new trial.

[614]

There are but two points presented on this appeal. One pertains to a ruling against the admission of evidence; the other being that a certain finding of the court is not sustained by the evidence. The theory of the defendant under which his counsel framed his answer and attempted to present the testimony which he claims was erroneously rejected by the court was, that as this contract related to certain nursery stock to be raised by plaintiff, but which was to be removed by defendant, it was the duty of the plaintiff, to cultivate the said stock so as to keep it in proper condition to be removed at any time, and that he failed to do so. A witness called by defendant, aside from testifying as a witness to the condition in which he observed this nursery, was examined as an expert nurseryman and asked: “What in your opinion would be a proper amount of water for irrigating that nursery; to keep it in proper cultivation, and in a good state or condition, during the months of May and June, for the removal of nursery trees?” An objection to the last part of the question “to irrigate the ground sufficient for the removal of nursery trees” was made, on the ground that it was a duty which plaintiff was not required under the contract to fulfill. This objection was sustained by the court, and this is the ruling which defendant complains of, it being asserted that the ruling sprang from an erroneous construction which the court placed on the provision of the contract respecting irrigation and cultivation of the nursery stock by plaintiff.