MONETA CANNING AND PRESERVING COMPANY v. MARTIN et al., 7 Cal. Unrep. 318

ALLEN, J. Action to recover the agreed price of certain pea vines delivered to appellants by plaintiff under a written agreement. Judgment in favor of plaintiff, from which, and an order denying their motion for a new trial, defendants appeal. The defendants answered separately, each denying the execution of the agreement or the receipt of the vines. The court found in favor of plaintiff upon these issues, and the evidence is uncontradicted in support of its findings.

An attempt was made by defendants to plead a rescission of the contract upon the grounds of fraud in its procurement and a total failure of consideration. The answers were each insufficient to constitute a defense or to entitle the defendants to any relief. No facts were pleaded showing fraud upon plaintiff’s part; neither was any fraudulent intent claimed, nor is it averred that defendants were ignorant as to the representations upon which they claimed to have relied.

It is argued by appellants that the vines not being existent when the contract was made, a warranty of their merchantable character and soundness failed under the provisions of

section 1768 of the Civil Code. Were all this conceded, there is no evidence tending to show that the goods were either unsound or unmerchantable when delivered; but the contrary appears. There was no finding of the court in relation to the separate defenses, but, there being no evidence offered in support thereof, findings were unnecessary. A brief synopsis of the evidence is set out in the transcript, from which it appears that the judgment of the court could not have been otherwise than as rendered. The judgment and order are affirmed. We concur: Gray, P. J.; Smith, J.