tain facts specifically found upon issues rais- were properly had, commencing December 21, ed by the answer of the defendants, all of 189.3. On or before December 30th several the facts alleged in the complaint are true. sealed proposals were delivered to the clerk,

1. In their answer to the complaint the one of which was so delivered by the asdefendants allege that the city council did signor of the plaintiff, and on February 13, not, by resolution or otherwise, fix a day or 1996, the city council in open session opened hour prior to which, or at which, it would and examined all said proposals, and publicreceive or open or consider any proposal for ly declared the same, and afterwards on Jandoing the work mentioned in the complaint, uary 20, 1896, by its resolution, awarded the and did not authorize or direct its clerk to contract for doing said work to the plaintiff's fix such day or hour; and one of the special assignor. is in these proceedings the city tindings of fact made by the court was in ac- council strictly complied with all of the above corilance with this arerment. Section 5 of į provisions of section 5, the fact which is the street improvement act, in force at the above allegedl in the answer and found by time these proceedings were had (St. 1891, p. the court had no tendency to impair the val199), is as follows: "Before the awarding of )

idity of the assessment. any contract by the city council for doing any 2. The improvement ordered by the city work authorized by this act the city council council was the construction of a sewer in shall cause notice with specifications to be Newton avenue from the center line of posted conspicuously for five days on or near Fourth avenue to the center line of Lester the council chamber door of said council, in- avenue produced-10 inches in diameter from viting sealed proposals or bids for doing the the center of Fourth avenue to the center of work ordered, and shall also cause notice of Athol avenue produced, and 8 inches in diamsaid work, inviting said proposals, and re- eter from the (enter of Athol avenue to ferring to the specitications posted or on file, the center of Lester avenue produced. The to be published for two days in a daily, semi- , complaint alleges that the lot described thereweekly or weekly newspaper printed and cir- in was numbered in the assessment and diaculated in said city, designated by the coun- gram as No. 13, and was assessed to pay $96.63 cil for said purpose, and in case there is no i for frontage work, $27.SO for Lester avenue newspaper published in said city then it shall , Termination work, $16.0.3 for Athol avenue only be posted as hereinbefore provided. į termination work, and $31.90 for work op

*

Said proposals or bids shall be de- | posite the termination of Watson avenue, livered to the clerk of said city council, and making in the aggregate $172.98 for which said council shall in open session examine i the lien is claimed. The finding of the court and publicly declare the same.” The council that the averments in the complaint of the is not requirel by this section to limit the making and recording of the assessment, wartime within which the proposals may be de- rant, and diagram, with the affidavit of delivered to its clerk, or to fix the day or hour mand and nonpayment, are true, in the abat which it will open or consider them; nor sence of any other evidence, entitled the is it required to direct the clerk to designate plaintiff to a judgment in his favor, and in his notice inviting such proposals any day, threw upon the defendants the burden of or hour before or at which they shall be deliver- showing some defert in the prior proceedings

to him. ill that is required by this section sufficient to overcome the prima facie effect is that, before a contract shall be awarded, of those facis. Belser v. Allman, 134 Cal. the council shall cause a notice of the work 399, 66 Pac. 192; Raisch v. Hildebrandt, 146 ordered with specifications, inviting sealed Cal. 721, 81 Pac. 21. "If the defendant would proposals for doing the same, to be posted rely upon any error, defect, or irregularity conspicuously for five days, and shall also that may have supervened in the proceedings cause to be published for two days a notice subsequent to the ordering of the work, the of said work, inviting said proposals, and burden is upon him, not only to allege such referring to the specifications posted or on defect, but also to show the same by affirmafile; and that, at an open session of the coun- ; tive evidence." Belser v. Allman, supra. In cil held after the completion of the posting their answer the defendants deny, upon their and publishing of said notice, it shall open, information and belief, that the superintenexamine, and publicly declare the same. dent of streets made the assessment referred Thereupon it may award the contract to the to in the complaint, or that the said assesslowest responsible bidder. Edwards v. Ber- | ment had any

ment had any diagram attached thereto, lin, 123 Cal. 544. 56 Pac. 432; Belser v. All- and in like manner deny that the said assessman, 13+ Cal. 399, 66 Pac. 492. The reso- ment was made in the manner or form prelution ordering the work was passed Decem- scribed by law, and deny that, by or accordber 16, 1893, and on the same day the council ing to said assessment or diagram, the lot directed its clerk to post and keep posted described in the complaint and therein numconspicuously for five days a notice thereof, bered as 43 was assessed for any one of the with specifications, inviting sealed proposals separate sums stated in the complaint or for for doing the work, and in like manner cause any sum. Upon this issue the court found such notice to be published for five days. It that the superintendent of streets made and is alleged in the complaint, and not denied in issued the assessment, together with the warthe answer, that such posting and publication rant and diagram attached thereto, in the manner and form as stated in the complaint, v. Conniff, 99 Cal. 386, 34 Pac. 71; Ryan v. except that upon the assessment there was Altschul, 103 Cal. 176, 37 Pac. 339; Bates but one number, viz., 43, to represent the V. Adamson (Cal. App.) 81 Pac. 51. The dewhole of the lot described in the complaint; fendants' lot fronted upon the improvement, that upon the diagram attached thereto said and was assessable for its proportion of the lot is exhibited as a single lot, and has but cost of the work. If it was assessed for one number, viz., 43, to correspond with the more than its lawful proportion of such cost, same number on the assessment; and that whether by reason of an erroneous computaupon the assessment there were assessed tion, or an improper distribution of the cost against said lot the four separate and dis- upon the lands assessable therefor (Wells r. tinct sums mentioned in the complaint. The Wood, 114 Cal. 255, 46 Pac. 96), the error allegation of the defendant that the super- was waived by their failing to appeal to the intendent of streets did not make the assess- city council. In the absence of such appeal ment in the manner or form prescribed by the objection cannot be made for the first law, in the absence of setting forth the par- time in an action to enforce the assessment. ticulars in which it is defective, was but The validity of the assessment was not the averment of a legal conclusion and not impaired by the fact that the proportion of of a fact. The finding of the court that it the cost for which lot 43 is chargeable is was made as alleged in the complaint with subdivided into several amounts as alleged. certain exceptions leaves only the character The cost of the entire work is apportioned of these exceptions to be considered.

in separate amounts to the several portions The averment that the lot was not assessed of the territory chargeable therewith in acfor any one of the separate sums stated in cordance with their relative position to the the complaint was insufficient as a defense

work, as is required by the provisions of to an action for the aggregate of these sums the street improvement act, and the several if such separate sums could have been prop- amounts so apportioned are assessed against erly assessed against the lot for its proportion the lots within the respective territories of the cost of the entire work. The diagram chargeable therewith under the provisions of in connection with which the assessment is

the act. The assessment does not cease to be made is not set forth in the record, and a single assessment by reason of this apporthere is no averment in the answer of any tionment, nor is the lot of the defendants fact tending to impeach the correctness of charged thereby with more than its proporeither of the several assessments against the tion of the cost of the entire work. In thus lot numbered therein as 43 for a portion of

distributing portions of the cost upon lots the cost of the entire work. If there could

not fronting upon the street on which the be any circumstances under which such an work was done the amount which would othassessment could be proper, it will be assum- erwise be assessed against the lot of the deed that such circumstances existed in the fendants is not increased or otherwise afpresent case. Subdivision 7 of the street im- fected. See S. F. Pav. Co. v. Dubois (Cal. provement act (Stat. 1891, p. 202) provides | App.) 83 Pac. 72. It must therefore be held that where a subdivision street or avenue that the validity and correctness of the asterminates in another street or avenue the

sessment was not impaired by the mode in expenses of the work done on one half of

which the court finds that it was made, and, the width of the subdivision street or avenue inasmuch as the facts specifically found by shall be assessed upon the lots fronting on

the court have no tendency to impeach the such termination. Lot 43, against which the

correctness of the proceedings culminating assessment herein was made, is described in

in the assessment, it follows that the plainthe complaint as situated on the easterly

tiff was entitled to judgment, and that the side of Newton avenue; and it is in harmony

court erred in rendering judgment in favor with the terms of the assessment as set forth of the defendants. in the complaint that Lester avenue, Athol

The judgment is reversed. avenue, and Watson avenue are subdivision streets terminating in Newton avenue on its

We concur: COOPER, J.; HALL, J. westerly side, and that the several amounts assessed against lot 43 for “termination” work were so assessed for the work done on the

(4 Cal. App. 249) easterly half of Newton avenue opposite the BRACKETT v. MARTENS. (Civ. 213.) termination of those streets. In such case

(Court of Appeal, First District. California. the assessment would not be void upon its

Aug. 15, 1906.) face, but would be in accordance with the 1. SALES—WARRANTY OF MERCHANTABLENESS provisions of said subdivision 7. If the facts -FRUIT TREES. were otherwise, or if, by reason of the posi

A statement by the seller of fruit trees

after having explained to the buyer that they tion of such avenues, the assessment upon

had not been very well taken care of and were the lot for work done opposite their termina- of the cheapest grade, that they were good trees tions was not authorized, that was a matter if taken care of, amounted merely to an exto be determined by evidence outside of

pression of an opinion, and did not constitute a

warranty of merchantableness. the assessment, and could be remedied only

[Ed. Note: Fors cases in point, sue vol. 43,

by an appeal to the city council. McDonald

Dig. , .]

2. LIMITATION OF ACTIONS – ACCRUAL OF Defendant made a motion for a new trial, RIGIIT OF ACTION ON WARRANTY-SALES. which was denied, and this appeal is from

Where plaintiff sued on an alleged warranty of merchantableness of certain fruit trees

the judgment and the order denying the mopurchased from defendant, the cause of action, tion. The court found that defendant warif any, arose on the purchase of the trees, and ranted the said prune trees to be merchantwas barred after two years by Code Civ. Proc. $ 339, subd. 1, requiring actions on a contract,

able French prune trees, budded on Myrobobligation, or liability not founded on an instru- olan roots, but that they "were not merchantment of writing to be commenced within two able French prune trees, though budded on · years.

Myrobolan roots, but were each and all un[Ed. Note. For cases in point, see vol. 33, Cent. Dig. Limitation of Actions, $ 248.]

merchantable French prune trees, and were

not fit for the purposes for which they were Appeal from Superior Court, Santa Clara sold.” The court further found that plaintiff County; A. L. Rhodes, Judge.

"did not know, and by the use of ordinary Action by Cora L. Brackett, as adminis- | diligence did not and could not discover, that tratrix, of the estate of L. P. Brackett, de

said 1,000 trees were defective and unmerceased, against H. Martens. From a judg- chantable until the fall of the year 1899, ment for plaintiff, and from an order deny- when they began rapidly to die, and he then ing defendant's motion for a new trial, he for the first time discovered that said trees appeals. Reversed.

were not as represented and warranted by Wm. P. Veuve, for appellant. J. B. Ker- defendant.” The court found against defendwin, for respondent.

ant as to the statute of limitations. There is

no finding as to whether or not the trees were COOPER, J. The complaint alleges that properly budded, and as the court found that in February, 1896, the defendant sold and de

they were budded on Myrobolan roots, and livered to plaintiff 1,000 French prune trees, that they were French prune trees, we must and, at the same time, warranted to the plain- presume that they were properly budded. tiff that they were merchantable French There is no finding that the trees were inprune trees properly budded on Myrobolan properly budded, nor that they were budded roots; that plaintiff relied solely upon said on inferior roots, and we must therefore prewarranty, and paid defendant the price there- sume that they were properly budded on Myfor, $15; that all of said trees were not mer

robolan roots. The material finding, then, up«hantable French prune trees, properly bud

on which the judgment must rest, if it can «led, nor were either or any of them properly rest upon any finding, is that the trees were 'budded on Myrobolan roots, but that they warranted to be merchantable and that they were all and each of them budded in an im- were not merchantable as warranted. proper manner on an inferior and worthless

It is contended that there was an express root, and of no value whatever to plaintiff. warranty made by the defendant to the plainThat plaintiff planted the said trees upon

tiff at the time of the sale to the effect that land owned by him in March, 1896, but that the trees were merchantable, and the court so at no time subsequent to the sale did plaintiff found. Upon a careful examination of the discover, nor had he any means or opportun

evidence we have concluded that it does not ity by ordinary diligence of discovering, that

support the finding. It will not be necessary said trees were not of the variety so ordered

to decide the question as to whether or not ind paid for by plaintiff, to wit, merchantable

the trees were merchantable, for the reason French prune trees properly budded on My

that if the defendant did not warrant them robolan roots, as represented and warranted to be merchantable the question would be by defendant, until the fall of 1899, when the immaterial. It may, however, be said that said trees began rapidly to die. That plain- | there is slight evidence that the trees were tiff's land with said worthless and inferior not merchantable, except the fact that they variety growing thereon is worth less by began rapidly to die in the fall of 1899. They $5,000 than it would be worth were the trees grew during the summer of 1896, 1897, 1898, growing thereon the trees so ordered and paid and 1899 until fall, before the plaintiff, acfor by the plaintiff, and that hence plaintiff | cording to his own testimony, discovered or has been damaged in the sum of $5,000. The

could have discovered that they were not defendant demurred to the complaint on the merchantable. It is not a presumption of law ground that it does not state facts sufficient or of fact that a fruit tree sold in February, to constitute a cause of action. The demurrer 1896, was not then merchantable simply bewas overruled, and defendant answered, de- cause it died in the fall of 1899. The reason nying the material allegations of the com- why the trees began to die in the fall of 1899 plaint, and also alleging that the cause of ac- is not clear. There is much testimony to the tion is barred by the provisions of section effect that the soil where the trees were 337, and the provisions of subdivision 1 of planted is only 2 or 3 feet deep, and that besection 339 of the Code of Civil Procedure. neath it there is a blue clay some 100 feet in The case was tried before the court and find-depth that is not porous and through which ings filed, upon which judgment was ordered water will not penetrate, and hence the sediand entered in favor of the plaintiff for ment or top soil is not moistened or fed by $1,500 damages, besides costs.

capillary attraction from the clay below;

*

that there is a great amount of alkali in the can't tell the words that were said, but the soil, and that it is not proper soil for an or- meaning was to get good trees-good roots. chard ; that the roots of the trees when they That is the manner and kind I did get. reached the clay could go down no farther,

Martens said they were good trees and hence spread out along the clay under- if taken care of-that they would make good, neath the soil, and being unable to get nutri- thrifty trees * * * he said they had not ment, the roots starved and perished. There been irrigated and cultivated as the others is also testimony to the effect that the trees had.” Defendant testified: “I told him we were poorly cultivated, not properly pruned, had plenty of trees, but they were of different and crops grown in between the rows, which sizes and different prices. He asked me what deprived them of the nutriment and moisture the first-class were worth. I told him ten that they would otherwise have received. cents; that there was a nice size which we The fact that tliey grew for more than 3 call No. 2, worth six cents; and there was years so that plaintiff could not discover any. a size which we call No. 3 worth four cents. thing wrong about them, would tend very

* I told him there were four-cent strongly to corroborate the theory that when trees, if he approved of them, but that they the trees arrived at the age when the roots were not so large as he had been getting. He needed more room to reach down and procure said the four-cent trees looked to him plenty nourishment, and could go no farther, the good enough, and he would just as soon have starvation of the tree began. There is testi- them as any others for that price. So he acmony which is not contradicted that an or- cepted the trees shown to him. He pulled chard had before been planted on this same up and examined several bunches of the fourland and perished. The trees died by what cent grade. They were satisfactory to him, many of the witnesses call "pinch-off," which he said, so long as he was getting them at is the growing of the bud on top much more that price. He came for them himself, and rapidly than the root or original stock, caus- took his own choice of the lot. I was not ing the trunk of the tree or new stock to be present when he took the trees—the fourlarger above the point where it has been cent trees. This is all the conversation we joined or grafted than the stem of the origi- | had about the purchase of the trees.

* nal variety. The testimony showed that the When this purchase was made, some of the union of bud and stock was good, and there trees were drawn out of the piles, and Mr. was no weakness of the stem at the point of

Brackett examined them. In his case many union except the overgrowth of the scion as trees out of many piles of the different described by the witnesses.

grades were pulled out and inspected by Mr. The testimony claimed to support the find- Brackett. The trees I sold to Brackett were ing as to an express warranty is that of the third-class trees, and I told him so. * * * plaintiff and the defendant and that of the I did not warrant these trees which I sold plaintiff's father. Defendant's testimony | to Brackett, and the words 'warrant and shows without conflict that the trees were 'merchantable' were not used at all in our graded in three classes or grades. If they conversation.” This is all the testimony on had made a growth of four feet or over at

the question of warranty. The defendant one year old, they were called first class and did not say that he would warrant the trees, sold at ten cents each; from three to four and while he said they were good trees he feet, the second class, and sold at six cents fully explained to plaintiff that they had not each; and from two to three feet the third been very well taken care of, and that they class, and sold at four cents each. Plaintiff were the cheapest grade. He also told the testified: “Went to defendant's nursery and plaintiff that if taken care of, they would looked at his trees. My father bought some make good, thrifty trees. They were shown six-cent trees and I took the balance of them, to plaintiff and he examined them, and picktwo hundred. Then he (defendant) showed ed them out of the grade shown him. They me some smaller trees, and said they were were French prunes on Myrobolan roots, just as good only they had not been irrigated properly budded. The defendant was asked and forced along; took eight hundred of the for French prune trees on Myrobolan roots, latter. He said they were No. 1 trees, only and by the sale of the trees he warranted they were not forced along by water like the them as such. This warranty the court found balance. He told me I could have my choice to be true, but defendant, by stating that of the four-cent trees. This is all he said." they were good trees if taken care of, was Plaintiff's father testified: "I went with my merely expressing his opinion. It was not son to defendant's nursery to post him, to understood that the language used was used see that he got good trees. Defendant said as an undertaking that the trees were merthey were good trees, but they had not had chantable trees. They were sold as the smallthe care the others had. All that was said est, lowest grade in the nursery. Plaintiff was this—that I wanted so many trees, and bought them as such. There was no undermy son so many. I wanted then on Myrob- taking by defendant that they would continue olan root-would not take any other as a to grow three, five, or ten years. gift because I was afraid of the floods com- A warranty is an engagement by which a ing there and injuring them. I could not seller assures to a buyer the existence of raise peach root, or peaches or apricots. I some fact affecting the transaction. Civ. Code, $ 1703. In this case plaintiff did not sections 1709 to 1778 of the Civil Code. The ask for merchantable trees, but for French sections referred to are under part IV, chapprune trees on Myrobolan roots. The state- ter II, article III of the Code. Section 1761 ment by the defendant that they were good is as follows: "No implied warranty in mere trees if taken care of was not the assurance contract of sale. Except as prescribed in of a fact affecting the transaction. A war- this article a mere contract of sale or agreeranty is defined in Benjamin on Sales, sec- ment to sell does not imply a warranty." tion 610, as a "collateral undertaking form- The only section under the article claimed ing a part of the contract by the agreement to be applicable is section 1769, which reads: of the parties, express or implied,” and the "Manufacturers' warranty against latent deAmerican note to the same section, pages fects. One who sells or agrees to sell an 606-8 says that a warranty “is an assurance article of his own manufacture thereby warof some fact, coupled with an agreement, rants it to be free from any latent defeet, not express or implied, to make the assurance disclosed to the buyer, arising from the progood or pay for the deficiency,” and that all cess of manufacture, and also that neither the authorities "agree that mere words of he nor his agent in such manufacture has praise and commendation, or which merely knowingly used improper materials therein." express the vendor's opinion, judgment or It may be doubted whether the prune trees estimate, do not constitute a warranty." In were an article of defendant's own manufacByrne v. Jansen, 50 Cal. 627, the plaintiff ture within the meaning of the above secclaimed damages for breach of an alleged tion. The trees were purchased; that is, the warranty in the sale of certain wool. The

The original Vyrobolan stock, by the defendcourt said: “The conversation had between ant, and imported from France, and subthe defendant and the plaintiff's agent did sequently budded by defendant to French not amount to a warranty. * * * There prunes. Defendant planted the young trees is nothing in the circumstance that the de- and budded them to a different stock. But fendant expressed a somewhat favorable if it can be conceded that the trees were opinion of his wool, that he indulged an opin- "an article of defendant's own manufacture." ion that, while Mr. Conn's wool might be a there was no latent defect arising from the little finer than his own, his was fully as process of manufacture, because the only profitable as Conn's for manufacturing pur- process was budding the French prune in the poses. This was mere praise of his own Myrobolan stock, which, as has been said property--the simplex commendatio which is

before, was properly done, and proper maallowable in making a trade, and is not held terials were used. by the rule of the common law to amount to

The defendant alleged in his answer that a warranty." In Polhemus v. Heiman, 45

the cause of action is barred by the proviCal. 579, a portion of the opinion in IIenshaw

sions of subdivision 1 of section 3:39 of the v. Robins, 9 Metc. (Mass.) 83, 43 Am. Dec. Code of Civil Procedure, which provides that 367, is quoted with approval wherein it is an action must be commenced within two said: “No expression of opinion, however

years upon "a contract, obligation, or liabilstrong, would import a warranty. But if the ity not founded upon an instrument of writvendor at the time of sale affirms a fact as

ing."

The court erred in holding that the to the essential qualities of his goods in action was not barred under the section cited. clear and definite language, and the pur- The cause of action, if any, arose upon the chaser buys on the faith of such an affirma- purchase of the trees in February, 1896. If tion, that we think is an express warranty." the defendant sold to plaintiff trees (different Saying to a buyer that a machine will do from what he had warranted, they were good work, or is a good machine, was held different at the time they were sold. Section not to necessarily constitute a warranty. Me- 338 cannot aid plaintiff, because the action Donald Mfg. Co. v. Thomas, 53 Iowa, 558, is one for a breach of warranty, and not for 5 N W. 737. So the words "good excellent relief on the ground of fraud or mistake. butter" were held to be merely descriptive, Upon the breach of any contract the statute and not a warranty (Greenthal v. Schneider, begins to run at the date of the breach. See 52 How. Prac. [N. Y.] 133); and a statement

Lattin v. Gillette, 95 Cal. 317, 30 Pac. 515, 29 by a seller of guano "that it is a good fertil

Am. St. Rep. 115, where the question is fully izer" was held not to amount to a warranty.

discussed. If the rule contended for by plain(Farrow y. Andrews, 69 Ala. 96); and by the

tiff be correct the trees might have lived 8. vender of a machine that it "was a very good

10 or 15 years, and then have died, and plainmachine, and will do very nice work” (Worth

tiff would not till then have discovered that v. McConnell, 42 Mich. 473, 4 N. W. 198).

they were not merchantable in February, Counsel for respondent states in his brief,

1836. If defendant had warranted in writ"It seems to us that in the sale of the prune trees there was an implied warranty, even

ing that the trees would live and grow, such if the language used was not an express

warranty would not mean that they would

live and grow forever. warranty, that they were merchantable in that they should reasonably answer the pur

The judgment and order are reversed. pose for which they were sold," and he cites in support of his theory of implied warranty We concur: HARRISON, P. J; HALL, J.