
    Willett G. Woodworth, Respondent, v. Rice Brothers Company, Appellant.
    
      Warranty — action for alleged breach of warranty on sale of fruit trees.
    
    
      Woodworth v. Rice Brothers Co., 193 App. Div. 971, affirmed.
    (Argued March 15, 1922;
    decided April 18, 1922.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 19, 1920, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. This action was for damages on an alleged breach of warranty on the sale of 1,150 young peach trees. The complaint alleged that on or about December 14, 1908, plaintiff and defendant entered into an agreement whereby defendant sold plaintiff 1,150 peach trees at the agreed price of ten cents per tree, and agreed to deliver the trees to plaintiff in good condition, and warranted that 750 of the trees so delivered would be of the variety known as Elbertas and the remaining 400 of the variety known as Willetts. Plaintiff further alleged that defendant delivered the trees, but committed a breach of the contract and warranty in that the trees did not bear Elberta and Willett peaches, but bore peaches of worthless variety. Defendant by its answer admitted the sale and .delivery of the trees, but denied the remaining allegations of the complaint and alleged by way of defense that the agreement of sale was in writing, and that by its terms the liability of defendant on account of the failure of any variety to be true to name was limited to the replacement by defendant of such trees as were not true to name. Defendant also pleaded the Statute of Limitations.
    
      W. Smith O’Brien for appellant.
    
      Harry Cooper and L. M. Sherwood for respondent.
   Judgment affirmed,, with costs; no opinión.

Concur: His cock, Ch. J., Hogan, Cardozo, Pound,' McLaughlin, Crane and Andrews, JJ.  