
    Mary Wood, as Sole Administratrix, etc., of Joseph Wood, Late of the Town of Schuyler Falls, Clinton County, New York, Deceased, Respondent, v. Elmer Sherwood, Appellant.
    Third Department,
    March 13, 1914.
    Contract—breach of contract to deliver apple trees of certain varieties —presumption of performance — evidence insufficient to establish breach — clause permitting replacement of trees or refund of purchase price, construed.
    In order to establish a cause of action for the breach of a contract to deliver apple trees of three different varieties the plaintiff must prove that a substantial proportion of the trees delivered by the defendant were not of the varieties ordered.
    There is a presumption that the vendor has complied with the contract, and evidence that out of twenty-five trees in an orchard of several hundred there are no trees of two of the varieties ordered is insufficient to establish a breach of the contract.
    
      A provision in a contract for the purchase of apple trees that “ any stock that does not prove to be true to name, as labelled, is to be replaced free, or purchase price refunded ” is intended merely to provide for incidental errors in the delivery of the trees, and not for an entire failure to perform the conditions of the contract.
    Appeal by the defendant, Elmer Sherwood, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 8th day January, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of January, 1913, denying defendant’s motion for a new trial made upon the minutes.
    After the judgment was entered the original plaintiff, Joseph Wood, died, and Mary Wood was duly appointed his administratrix.
    
      Agnew & Agnew [David H. Agnew of counsel], for the appellant.
    
      John B. Riley [Ernest C. Gordon of counsel], for the respondent.
   Woodward, J.:

The complaint in this action alleges that “within the six years last past plaintiff ordered from defendant and defendant sold and delivered to plaintiff upwards of 300 apple trees, and plaintiff caused the same to be transplanted on his farm in the town of Schuyler Falls, and has since expended much time and money in the care and cultivation of the same; ” that “plaintiff ordered and defendant agreed to deliver to plaintiff trees of the varieties known as McIntosh Beds, Delaware Beds and Fameuse, and represented the trees so delivered to plaintiff to be trees of said varieties, and plaintiff relied upon such representations, paid the defendant the agreed price therefor, and set out the same and has ever since cultivated and cared for them, believing that they were McIntosh Beds, Delaware Beds and Fameuse trees;” that “plaintiff has recently discovered that said trees were not Fameuse or McIntosh Beds or Delaware Beds, but were of other varieties known as Ben Davis and others that are unprofitable to cultivate and maintain as an orchard for growing apples for profit.” The complaint then alleges on information and belief that the usual crop of apples, “if said trees had been McIntosh Beds, Delaware Beds and Fameuse, as represented by defendant, would have been worth when said trees are full grown, each year, $300 more than will be produced by the kinds of trees delivered to the plaintiff, and that plaintiff has and will suffer loss and damage in consequence thereof in the sum of $600.” The same facts are realleged in two other counts, upon different theories of damages, but these are not material to the determination of the appeal.

The defendant, answering the complaint, “admits that during the years 1907, 1908 and 1909, he sold and delivered to the plaintiff a number of apple trees; that a part of said trees® were to be and were of the varieties known as McIntosh Beds, Delaware Beds and Fameuse, and that the plaintiff has paid the defendant on account of said trees the sum of thirty-three and 20/100 ($33.20) dollars,” and that the defendant “further admits that a part of the trees ordered by the plaintiff of the defendant were to be of the varieties known as McIntosh Beds, Delaware Beds and Fameuse. 2. Further answering- said complaint the defendant denies knowledge or information sufficient to form a belief as to each and every allegation therein contained not hereinbefore specifically admitted or denied.”

The defendant then sets up a separate defense, alleging that a condition of the contract under which the plaintiff purchased was that “Any stock that does not prove to be true to name as labeled is to be replaced free or purchase price refunded,” and then offers and pays into court upon the trial the amount of the purchase price, together with a sum sufficient to pay the interest, and then “Further answering said complaint the defendant denies, upon information and belief, each and every allegation therein contained, not hereinbefore admitted.”

We are of the opinion that the affirmative defense pleaded is of no value to the defendant, unless it appears from the evidence that there was a substantial performance of the contract on his part, the clause permitting replacements or the refunding’ of the money being intended merely to provide for incidental errors in the delivery of the trees and not to an entire failure to perform the conditions of the contract. (Sanford v. Brown Brothers Co., 134 App. Div. 652.)

We come then to the question of whether the plaintiff has established the cause of action alleged, this question being presented by the motion to dismiss at the close of the evidence and by the motion for a new trial, both of these motions having been denied, the defendant taking exceptions. It will be recalled that the complaint alleged the purchase from the defendant of upwards of three hundred trees, and that it was agreed that these trees should be of the varieties known as McIntosh Beds, Delaware Beds and Fameuse, and the answer admitted that this was the contract entered into between the parties. The complaint also alleged that the “plaintiff has recently discovered that said trees were not Fameuse or McIntosh Beds of Delaware Beds, but were of other varieties known as Ben Davis and others,” and this allegation is denied, so the plaintiff in order to establish any cause of action for a breach of the contract which, as we have seen by its terms, is one to be satisfied with substantial performance, must show that a substantial proportion of the trees delivered by the defendant were not of the varieties known as McIntosh Beds, Delaware Beds and Fameuse, for it is still necessary that judgments should be rendered in conformity with the allegations and proofs of the parties; secundum allegata et probata is fundamental in the administration of justice. (Wright v. Delafield, 25 N. Y. 266, 268.) The defendant admitted the selling of the Fameuse, the Delaware Beds and the McIntosh Beds, just as alleged in the complaint, and the plaintiff testified that he could not remember just how many trees he purchased since 1906. “In 1906,” he says, “I had two orders, 37 trees; they were to be McIntosh Beds and Fameuse; in 1907, 100; in 1908, 65; in 1909, 30.” This makes a total not upwards of 300 but of 232, and the witness says he has not purchased any since 1909, and he says, “I purchased Fameuse and McIntosh Beds from him;” but he alleged in his complaint that he purchased Delaware Beds, and this fact was admitted, and the only trees which he specifically says were to be McIntosh Eeds and Fameuse were the 37 trees purchased in 1906, so we must assume that the other 195 were either to be Delaware Eeds or of the other two varieties alleged in the complaint, and the record will be searched in vain for any evidence that all of the trees in this orchard, with the exception of one Ben Davis tree, were not comprised within these three varieties, for this court can hardly take judicial notice that Delaware Eeds are not common fruit, if it can be said that there is any real evidence that any part of the trees were in fact common fruit. Mo one of the witnesses claimed to be able to distinguish between the kind of trees before they bore fruit, and the plaintiff testified, “ I could not tell how many of these trees have borne fruit, because I have not counted them. As near as I can tell, near enough, 25.” This was certainly indefinite enough, although it might have been “near enough” to suit the plaintiff’s purposes, and he then tells us that “ one variety is Ben Davis; the rest I cannot tell you. I know the McIntosh Eeds and Fameuse. There are none of them,” referring we suppose to the trees which have borne fruit, for it immediately follows his guess of twenty-five bearing trees in the record, and then he adds: “I did not buy any Ben Davis, they are not worth while cultivating and growing.” There is a suggestion in the evidence, but not very direct, that there was one Ben Davis apple tree upon the plaintiff’s premises; certainly there is no evidence which would warrant any one in concluding that there were any more. One witness, it is true, testifies that he visited the orchard in question, and that there “ are no Fameuse or McIntosh Eeds among those trees,” but he admitted immediately afterwards that he could not distinguish “ the McIntosh Eeds from Fameuse or common fruit by going through his orchard,” but said that he formed his judgment from the fruit which he picked up under the trees, and that “there was one tree we got Ben Davis from. The rest of them I don’t know what variety they are. They are good for nothing, common fruit.” But all of this must be referred to the twenty-five trees more or less out of the orchard which had borne fruit, and there is not a particle of evidence that the so-called common fruit is not the Delaware Reds alleged in the complaint, with the exception that the plaintiff testified that there is one other tree in the young orchard than those purchased from Sherwood, an early apple, an old tree,” and there is nothing to show that the witness Weaver, who was clearly testifying as the wise farmer of the neighborhood rather than from any definite knowledge of the facts, did not pick up some of his sample apples from under this very tree.

The fact, if it is a fact, that out of the twenty-five more or less bearing trees there were no Fameuse or McIntosh Reds, and that there was one Ben Davis, the others not being known to the witness, does not establish a breach of the contract alleged by the plaintiff, for it fails entirely to negative the presumption that substantially all of the other trees were Delaware Reds. The only positive evidence of the purchase of Fameuse and McIntosh Reds is given by the plaintiff who says that he purchased thirty-seven trees in 1906, and that these were to be of those varieties, and if none of these were found among the twenty-five bearing trees it would not establish that there were not the required number in the orchard, especially where it does not appear that the bearing trees were the ones which were labeled as belonging to these varieties. Ooncededly there were to be Delaware Reds among the trees sold and delivered to the plaintiff; the complaint alleges this, and the allegation is specifically admitted by the defendant, so that this fact is established beyond controversy, and until the plaintiff has established that the orchard is not made up substantially of the three varieties which he says he purchased from the defendant he has failed to make out the breach of the contract which he has alleged, and he has no right to any damages. The presumption must be that the defendant has delivered the goods contracted to be delivered, and evidence that out of a group «of twenty-five trees, in an orchard of several hundred, there are no trees of two of the varieties, is not meeting the burden of proof; is not furnishing any proof whatever of a violation of the contract.

The judgment and order appealed from should be reversed, with costs.

All concurred.

Judgment and order reversed on law and facts, and new trial granted, with costs to appellant to abide event.

The court disapproves of the findings of fact that the defendant failed to perform the contract, and that the plaintiff suffered damage.  