manner and form as stated in the complaint, except that upon the assessment there was but one number, viz., 43, to represent the whole of the lot described in the complaint; that upon the diagram attached thereto said lot is exhibited as a single lot, and has but one number, viz., 43, to correspond with the same number on the assessment; and that upon the assessment there were assessed against said lot the four separate and distinct sums mentioned in the complaint. The allegation of the defendant that the superintendent of streets did not make the assessment in the manner or form prescribed by law, in the absence of setting forth the particulars in which it is defective, was but the averment of a legal conclusion and not of a fact. The finding of the court that it was made as alleged in the complaint with certain exceptions leaves only the character of these exceptions to be considered.

The averment that the lot was not assessed for any one of the separate sums stated in the complaint was insufficient as a defense to an action for the aggregate of these sums if such separate sums could have been properly assessed against the lot for its proportion of the cost of the entire work. The diagram in connection with which the assessment is made is not set forth in the record, and there is no averment in the answer of any fact tending to impeach the correctness of either of the several assessments against the lot numbered therein as 43 for a portion of the cost of the entire work. If there could be any circumstances under which such an assessment could be proper, it will be assumed that such circumstances existed in the present case. Subdivision 7 of the street improvement act (Stat. 1891, p. 202) provides that where a subdivision street or avenue terminates in another street or avenue the expenses of the work done on one half of the width of the subdivision street or avenue shall be assessed upon the lots fronting on such termination. Lot 43, against which the assessment herein was made, is described in the complaint as situated on the easterly side of Newton avenue; and it is in harmony with the terms of the assessment as set forth in the complaint that Lester avenue, Athol avenue, and Watson avenue are subdivision streets terminating in Newton avenue on its westerly side, and that the several amounts assessed against lot 43 for "termination" work were so assessed for the work done on the easterly half of Newton avenue opposite the termination of those streets. In such case the assessment would not be void upon its face, but would be in accordance with the provisions of said subdivision 7. If the facts were otherwise, or if, by reason of the position of such avenues, the assessment upon the lot for work done opposite their terminations was not authorized, that was a matter to be determined by evidence outside of the assessment, and could be remedied only by an appeal to the city council. McDonald

v. Conniff, 99 Cal. 386, 34 Pac. 71; Ryan v. Altschul, 103 Cal. 176, 37 Pac. 339; Bates v. Adamson (Cal. App.) 84 Pac. 51. The defendants' lot fronted upon the improvement, and was assessable for its proportion of the cost of the work. If it was assessed for more than its lawful proportion of such cost, whether by reason of an erroneous computation, or an improper distribution of the cost upon the lands assessable therefor (Wells v. Wood, 114 Cal. 255, 46 Pac. 96), the error was waived by their failing to appeal to the city council. In the absence of such appeal the objection cannot be made for the first time in an action to enforce the assessment.

The validity of the assessment was not impaired by the fact that the proportion of the cost for which lot 43 is chargeable is subdivided into several amounts as alleged. The cost of the entire work is apportioned in separate amounts to the several portions of the territory chargeable therewith in accordance with their relative position to the work, as is required by the provisions of the street improvement act, and the several amounts so apportioned are assessed against the lots within the the lots within the respective territories chargeable therewith under the provisions of the act. The assessment does not cease to be a single assessment by reason of this apportionment, nor is the lot of the defendants charged thereby with more than its proportion of the cost of the entire work. In thus distributing portions of the cost upon lots not fronting upon the street on which the work was done the amount which would otherwise be assessed against the lot of the defendants is not increased or otherwise affected. See S. F. Pav. Co. v. Dubois (Cal. App.) 83 Pac. 72. It must therefore be held that the validity and correctness of the assessment was not impaired by the mode in which the court finds that it was made, and, inasmuch as the facts specifically found by the court have no tendency to impeach the correctness of the proceedings culminating in the assessment, it follows that the plaintiff was entitled to judgment, and that the court erred in rendering judgment in favor of the defendants.

The judgment is reversed.

We concur: COOPER, J.; HALL, J.

(4 Cal. App. 249) BRACKETT v. MARTENS. (Civ. 213.) (Court of Appeal, First District. California. Aug. 15, 1906.)

1. SALES-WARRANTY OF MERCHANTABLENESS -FRUIT TREES.

A statement by the seller of fruit trees after having explained to the buyer that they had not been very well taken care of and were of the cheapest grade, that they were good trees if taken care of, amounted merely to an expression of an opinion, and did not constitute a warranty of merchantableness.

[Ed. Note. For cases in point, see vol. 43, Cent. Dig. Sales, §§ 727-732.j

Defendant made a motion for a new trial, which was denied, and this appeal is from the judgment and the order denying the motion. The court found that defendant warranted the said prune trees to be merchantable French prune trees, budded on Myrobolan roots, but that they "were not merchantable French prune trees, though budded on Myrobolan roots, but were each and all unmerchantable French prune trees, and were not fit for the purposes for which they were sold." The court further found that plaintiff "did not know, and by the use of ordinary diligence did not and could not discover, that said 1,000 trees were defective and unmerchantable until the fall of the year 1899, when they began rapidly to die, and he then for the first time discovered that said trees were not as represented and warranted by

COOPER, J. The complaint alleges that in February, 1896, the defendant sold and delivered to plaintiff 1,000 French prune trees, and, at the same time, warranted to the plaintiff that they were merchantable French prune trees properly budded on Myrobolan roots; that plaintiff relied solely upon said warranty, and paid defendant the price therefor, $45; that all of said trees were not merchantable French prune trees, properly budled, nor were either or any of them properly 'budded on Myrobolan roots, but that they were all and each of them budded in an improper manner on an inferior and worthless root, and of no value whatever to plaintiff. That plaintiff planted the said trees upon land owned by him in March, 1896, but that at no time subsequent to the sale did plaintiff discover, nor had he any means or opportunity by ordinary diligence of discovering, that said trees were not of the variety so ordered and paid for by plaintiff, to wit, merchantable French prune trees properly budded on Myrobolan roots, as represented and warranted by defendant, until the fall of 1899, when the said trees began rapidly to die. That plaintiff's land with said worthless and inferior variety growing thereon is worth less by $5,000 than it would be worth were the trees growing thereon the trees so ordered and paid for by the plaintiff, and that hence plaintiff has been damaged in the sum of $5,000. The defendant demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was overruled, and defendant answered, denying the material allegations of the complaint, and also alleging that the cause of action is barred by the provisions of section 337, and the provisions of subdivision 1 of section 339 of the Code of Civil Procedure. The case was tried before the court and findings filed, upon which judgment was ordered and entered in favor of the plaintiff for $1,500 damages, besides costs.

ant as to the statute of limitations. There is no finding as to whether or not the trees were properly budded, and as the court found that they were budded on Myrobolan roots, and that they were French prune trees, we must presume that they were properly budded. There is no finding that the trees were improperly budded, nor that they were budded on inferior roots, and we must therefore presume that they were properly budded on Myrobolan roots. The material finding, then, upon which the judgment must rest, if it can rest upon any finding, is that the trees were warranted to be merchantable and that they were not merchantable as warranted.

It is contended that there was an express warranty made by the defendant to the plaintiff at the time of the sale to the effect that the trees were merchantable, and the court so found. Upon a careful examination of the

evidence we have concluded that it does not

support the finding. It will not be necessary to decide the question as to whether or not the trees were merchantable, for the reason that if the defendant did not warrant them to be merchantable the question would be immaterial. It may, however, be said that there is slight evidence that the trees were not merchantable, except the fact that they began rapidly to die in the fall of 1899. They grew during the summer of 1896, 1897, 1898, and 1899 until fall, before the plaintiff, according to his own testimony, discovered or could have discovered that they were not merchantable. It is not a presumption of law or of fact that a fruit tree sold in February, 1896, was not then merchantable simply because it died in the fall of 1899. The reason why the trees began to die in the fall of 1899 is not clear. There is much testimony to the effect that the soil where the trees were planted is only 2 or 3 feet deep, and that beneath it there is a blue clay some 100 feet in depth that is not porous and through which water will not penetrate, and hence the sediment or top soil is not moistened or fed by capillary attraction from the clay below;

that there is a great amount of alkali in the soil, and that it is not proper soil for an orchard: that the roots of the trees when they reached the clay could go down no farther, and hence spread out along the clay underneath the soil, and being unable to get nutriment, the roots starved and perished. There is also testimony to the effect that the trees were poorly cultivated, not properly pruned, and crops grown in between the rows, which deprived them of the nutriment and moisture that they would otherwise have received. The fact that they grew for more than 3 years so that plaintiff could not discover anything wrong about them, would tend very strongly to corroborate the theory that when the trees arrived at the age when the roots needed more room to reach down and procure nourishment, and could go no farther, the starvation of the tree began. There is testimony which is not contradicted that an orchard had before been planted on this same land and perished. The trees died by what many of the witnesses call "pinch-off," which is the growing of the bud on top much more rapidly than the root or original stock, causing the trunk of the tree or new stock to be larger above the point where it has been joined or grafted than the stem of the original variety. The testimony showed that the union of bud and stock was good, and there was no weakness of the stem at the point of union except the overgrowth of the scion as described by the witnesses.

The testimony claimed to support the finding as to an express warranty is that of the plaintiff and the defendant and that of the the plaintiff's father. Defendant's testimony shows without conflict that the trees were graded in three classes or grades. If they If they had made a growth of four feet or over at one year old, they were called first class and sold at ten cents each; from three to four feet, the second class, and sold at six cents each; and from two to three feet the third class, and sold at four cents each. Plaintiff testified: "Went to defendant's nursery and looked at his trees. My father bought some six-cent trees and I took the balance of them, two hundred. Then he (defendant) showed me some smaller trees, and said they were just as good only they had not been irrigated and forced along; took eight hundred of the latter. IIe said they were No. 1 trees, only they were not forced along by water like the balance. He told me I could have my choice of the four-cent trees. This is all he said." Plaintiff's father testified: "I went with my son to defendant's nursery to post him, to see that he got good trees. Defendant said they were good trees, but they had not had the care the others had. All that was said was this-that I wanted so many trees, and my son so many. I wanted then on Myrobolan root-would not take any other as a gift because I was afraid of the floods coming there and injuring them. I could not raise peach root, or peaches or apricots. I

*

*

can't tell the words that were said, but the meaning was to get good trees-good roots. That is the manner and kind I did get. *** Martens said they were good trees if taken care of-that they would make good, thrifty trees *** he said they had not been irrigated and cultivated as the others had." Defendant testified: "I told him we had plenty of trees, but they were of different' sizes and different prices. He asked me what the first-class were worth. I told him ten cents; that there was a nice size which we call No. 2, worth six cents; and there was a size which we call No. 3 worth four cents. I told him there were four-cent trees, if he approved of them, but that they were not so large as he had been getting. He said the four-cent trees looked to him plenty good enough, and he would just as soon have them as any others for that price. So he accepted the trees shown to him. He pulled up and examined several bunches of the fourcent grade. They were satisfactory to him, he said, so long as he was getting them at that price. He came for them himself, and took his own choice of the lot. I was not present when he took the trees-the fourcent trees. This is all the conversation we had about the purchase of the trees. * * When this purchase was made, some of the trees were drawn out of the piles, and Mr. Brackett examined them. In his case many trees out of many piles of the different grades were pulled out and inspected by Mr. Brackett. The trees I sold to Brackett were third-class trees, and I told him so.

**

I did not warrant these trees which I sold to Brackett, and the words 'warrant' and 'merchantable' were not used at all in our conversation." This is all the testimony on the question of warranty. The defendant did not say that he would warrant the trees, and while he said they were good trees he fully explained to plaintiff that they had not been very well taken care of, and that they were the cheapest grade. He also told the plaintiff that if taken care of, they would make good, thrifty trees. They were shown to plaintiff and he examined them, and picked them out of the grade shown him. They were French prunes on Myrobolan roots, properly budded. The defendant was asked for French prune trees on Myrobolan roots, and by the sale of the trees he warranted them as such. This warranty the court found to be true, but defendant, by stating that they were good trees if taken care of, was merely expressing his opinion. It was not understood that the language used was used as an undertaking that the trees were merchantable trees. They were sold as the smallest, lowest grade in the nursery. Plaintiff bought them as such. There was no undertaking by defendant that they would continue to grow three, five, or ten years.

A warranty is an engagement by which a seller assures to a buyer the existence of some fact affecting the transaction. Civ.

Code, 1763. In this case plaintiff did not ask for merchantable trees, but for French prune trees on Myrobolan roots. The statement by the defendant that they were good trees if taken care of was not the assurance of a fact affecting the transaction.

ranty is defined in Benjamin on Sales, section 610, as a "collateral undertaking forming a part of the contract by the agreement of the parties, express or implied." and the American note to the same section, pages 606-8 says that a warranty "is an assurance of some fact, coupled with an agreement, express or implied, to make the assurance good or pay for the deficiency," and that all the authorities "agree that mere words of praise and commendation, or which merely express the vendor's opinion, judgment or estimate, do not constitute a warranty." In Byrne v. Jansen, 50 Cal. 627, the plaintiff claimed damages for breach of an alleged warranty in the sale of certain wool. The court said: "The conversation had between the defendant and the plaintiff's agent did not amount to a warranty. * * * There is nothing in the circumstance that the defendant expressed a somewhat favorable opinion of his wool, that he indulged an opinion that, while Mr. Conn's wool might be a little finer than his own, his was fully as profitable as Conn's for manufacturing purposes. This was mere praise of his own property-the simplex commendatio which is allowable in making a trade, and is not held by the rule of the common law to amount to a warranty." In Polhemus v. Heiman, 45 Cal. 579, a portion of the opinion in Henshaw v. Robins, 9 Metc. (Mass.) 83, 43 Am. Dec. 367. is quoted with approval wherein it is said: "No expression of opinion, however strong, would import a warranty. But if the vendor at the time of sale affirms a fact as to the essential qualities of his goods in clear and definite language, and the purchaser buys on the faith of such an affirmation, that we think is an express warranty." Saying to a buyer that a machine will do good work, or is a good machine, was held not to necessarily constitute a warranty. MeDonald Mfg. Co. v. Thomas, 53 Iowa, 558, 5 N. W. 737. So the words "good excellent butter" were held to be merely descriptive, and not a warranty (Greenthal v. Schneider, 52 How. Prac. [N. Y.] 133); and a statement by a seller of guano "that it is a good fertilizer" was held not to amount to a warranty. (Farrow v. Andrews, 69 Ala. 96); and by the vender of a machine that it "was a very good machine, and will do very nice work" (Worth v. McConnell, 42 Mich. 473, 4 N. W. 198).

Counsel for respondent states in his brief, "It seems to us that in the sale of the prune trees there was an implied warranty, even if the language used was not an express warranty, that they were merchantable in that they should reasonably answer the purpose for which they were sold," and he cites in support of his theory of implied warranty

sections 1769 to 1778 of the Civil Code. The sections referred to are under part IV, chapter II, article III of the Code. Section 1764 is as follows: "No implied warranty in mere contract of sale. Except as prescribed in this article a mere contract of sale or agreement to sell does not imply a warranty." The only section under the article claimed to be applicable is section 1769, which reads: "Manufacturers' warranty against latent defects. One who sells or agrees to sell an article of his own manufacture thereby warrants it to be free from any latent defect, not disclosed to the buyer, arising from the process of manufacture, and also that neither he nor his agent in such manufacture has knowingly used improper materials therein." It may be doubted whether the prune trees were an article of defendant's own manufacture within the meaning of the above section. The trees were purchased; that is, the original Myrobolan stock, by the defendant, and imported from France, and subsequently budded by defendant to French prunes. Defendant planted the young trees and budded them to a different stock. But if it can be conceded that the trees were "an article of defendant's own manufacture." there was no latent defect arising from the process of manufacture, because the only process was budding the French prune in the Myrobolan stock, which, as has been said before, was properly done, and proper materials were used.

The defendant alleged in his answer that the cause of action is barred by the provisions of subdivision 1 of section 339 of the Code of Civil Procedure, which provides that an action must be commenced within two years upon "a contract, obligation, or liability not founded upon an instrument of writing." The court erred in holding that the action was not barred under the section cited. The cause of action, if any, arose upon the purchase of the trees in February, 1896. If the defendant sold to plaintiff trees different from what he had warranted, they were different at the time they were sold. Section 338 cannot aid plaintiff, because the action is one for a breach of warranty, and not for relief on the ground of fraud or mistake. Upon the breach of any contract the statute begins to run at the date of the breach. See Lattin v. Gillette, 95 Cal. 317, 30 Pac. 545, 29 Am. St. Rep. 115, where the question is fully discussed. If the rule contended for by plaintiff be correct the trees might have lived 8. 10 or 15 years, and then have died, and plaintiff would not till then have discovered that they were not merchantable in February, 1896. If defendant had warranted in writing that the trees would live and grow, such warranty would not mean that they would live and grow forever.

The judgment and order are reversed.

We concur: HARRISON, P. J; HALL, J.