the defendant to other purchasers of the same inferior variety of seed wheat as being "White Australian" would be admissible in chief, as relevant to the probability of the warranty in issue denied by defendant; and it was within the discretion of the court to allow the defendant to be questioned on cross-examination as to whether such warranties were made by him upon sales of such wheat to third persons named, and upon his denial thereof to allow the same to be proved in rebuttal, to discredit his testimony.

ID. LIMITS OF IMPEACHMENT UPON COLLATERAL MATTER -RELEVANCE TO ISSUE ALTERNATIVE.-It is only when the cross-examination of a witness is in reference to collateral matters which are irrelevant to the issue that the witness cannot be impeached by contradictory evidence. If the collateral fact is relevant to the issue, it may be shown either by the cross-examination of a witness for the purpose of contradicting him, or it may be shown by direct evidence of the fact.

ID.-TEST OF ADMISSIBILITY-TENDENCY OF EVIDENCE-PROVINCE OF JURY.-Though evidence should always be confined to the issue, it need not bear directly upon it. It is admissible if it tends to prove the issue, or constitutes a link in the chain of proof, although alone it might not justify a verdict in accordance with it. The strength of such tendency, or the amount of its weight, is to be determined by the jury. ID.-DISCRETION IN DETERMINING RELEVANCY.-In determining the relevancy of evidence offered upon an issue of fact, much depends upon the nature of the issue upon which it is offered, and a wide discretion is left to the trial judge in determining whether it is admissible or not. No precise or universal test of relevancy is furnished by the law. If the evidence offered conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should go to the jury.

APPEAL from a judgment of the Superior Court of Santa Clara County, and from an order denying a new trial. A. L. Rhodes, Judge.

The facts are stated in the opinion of the court.

William P. Veuve, for Appellant.

Warranties in favor of third parties are res inter alios acta, and inadmissible. (1 Greenleaf on Evidence, sec. 52; 1 Wharton on Evidence, sec. 29; Chamberlain's Best on Evidence, sec. 500 et seq. and American notes; Martinez v. Planel, 36 Cal. 578; King v. La Grange, 61 Cal. 221; Hol

lingham v. Head, 4 Com. B., N. S., 388; Carter v. Pyrke, Peake, 95; Spencely v. Wilmot, 7 East, 108; Smith v. Wilkin, 6 Car. & P. 180; Borden v. Keurberg, 2 Mees. & W. 61; Roberts v. Dixon, 50 Kan. 436, 31 Pac. 1083; Gill v. Staylor, 97 Md. 665, 55 Atl. 398; Linn v. Gilman, 46 Mich. 628, 10 Nev. 46; Davis v. Kneale, 97 Mich. 72, 56 N. W. 220; Roles v. Mintzer, 27 Minn. 31, 6 N. W. 378; McLoghlin v. Bank, 139 N. Y. 514, 34 N. E. 1095; Thompson v. Erum, 131 N. C. 111, 42 S. E. 543; Phelps v. Conant, 30 Vt. 277, 282; Aiken v. Kennison, 58 Vt. 665, 5 Atl. 757;

v Jones v. Ellis, 68 Vt. 544, 35 Atl. 488; Pictorial League v. Nelson, 69 Vt. 162, 37 Atl. 247; Limerick Nat. Bank v.

. . Adam, 70 Vt. 132, 40 Atl. 166; Repass v. Richmond, 99 Va. 508, 39 S. E. 160; Hartman v. Evans, 38 W. Va. 669, 18 S. E. 810; Kelley v. Schapp, 60 Wis. 76, 18 N. W. 725; Brunnell v. H. S. M. Co., 86 Wis. 587, 57 N. W. 364; Oliver v. Morawetz, 95 Wis. 1, 69 N. W. 977; Koehler v. Koehler, 104 Wis. 260, 80 N. W. 449; Jackson v. Smith, 7 Cow. 717; Linn V. Gilman, 46 Mich. 628, 10 N. W. 46; Chicago v. Greer, 76 U. S. 726; Corbin v. Flack, 19 Ind. 459; Palmer v. Hamilton (Ky.), 24 S. W. 613; Geremia v. Mayberry, 14 Nev. 199; Swamscot Machine Co. v. Walker, 22 N. H. 459, 55 Am. Dec. 172; McKnitt v. Cone, 30 Iowa, 455; Fitchburg R. R. Co. v. Truman, 78 Mass. 401; Mather v. Robinson, 47 Iowa, 403; Field v. Stubblefield, 85 Mo. 199; Lichtenheim v. Fisher, 39 N. Y. Supp. 553, 6 App. Div. 385; Singleton v. Thomas, 73 Ala. 205; Green v. Disbrow, 56 N. Y. 304.) The measure of damages should be,

, not what the wheat sold produced, but what the White Australian wheat would have produced, and no such damage is alleged. (Civ. Code, sec. 3313; Passinger v. Thornburn, 34 N. Y. 634, 90 Am. Dec. 753; Milburn v. Belloni, 39 N. Y. 53, 100 Am. Dec. 403; Parks v. Morris etc. Co., 54 N. Y. 586; Van Wyck v. Allen, 69 N. Y. 69, 25 Am. Rep. 136; White v. Miller, 71 N. Y. 118, 27 Am. Rep. 13; Dawley v. Brown, 79 N. Y. 394.)

F. J. Hambly, for Respondent.

The evidence objected to was relevant to the issue as tending to establish the probability of the warranty in issue. (Jones on Evidence, secs. 138, 139; Holmes v. Goldsmith, 147 U. S. 150, 13 Sup. Ct. 288; Stevenson v. Stewart, 11 Pa. St. 307.) The court has a wide discretion in the matter of admissibility of evidence as tending to bear on the issue, and also for purposes of assailing credibility by proof of a col

a lateral fact bearing upon that question. (Code Civ. Proc., sec. 1868; Bernardis v. Allen, 136 Cal. 10, 68 Pac. 110; Stevenson v. Stewart, 11 Pa. St. 307.) Section 1565 must gov. ern as to its particular subject matter, and effect must be given to its words. (Frandzen v. County of San Diego, 101 Cal. 317, 35 Pac. 897; Gates v. Salmon, 35 Cal. 576, 95 Am. Dec. 139; Chever v. Hayes, 3 Cal. 471; Dinlor v. Jewett, 88 Cal. 530, 26 Pac. 370.)

HARRISON, P. J.-Action for damages for a breach of warranty of the quality of certain personal property.

The complaint states that the plaintiff applied to the defendant to purchase from him certain seed wheat of the variety known as “White Australian," for the purpose of planting the same, and that the defendant thereupon sold to him twenty-seven thousand seven hundred and sixty pounds of seed wheat, and represented to him and warranted that the same was of the variety known as “White Australian”; that the plaintiff relied solely upon said representation and warranty, and planted the same on his land, believing that the seed wheat so planted was “White Australian"; that the seed wheat so planted produced a crop of about two hundred and seventy-five tons of hay; that the seed wheat was not the variety known as “White Australian," but was another and inferior variety, and produced a crop of hay inferior to that which would have been grown had it been “White Australian" seed wheat; and that, by reason of the premises the plaintiff had been damaged in the sum of $3,000, for which he prayed judgment.

The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and the court having overruled the demurrer he filed an answer, in which he admitted the sale of the wheat, but denied that he had represented it or warranted it to be “White Australian.” The cause was tried without a jury, and the court made findings of fact in accordance with the allegations of the complaint, and rendered judgment accordingly. A motion by the defendant for a new trial was de

nied, and from this order and from the judgment he has appealed.

1. The demurrer to the complaint was properly overruled. The point relied on in its support is that if any damages were sustained by the plaintiff they were special, and should have been specially alleged. The allegation that the seed wheat which was purchased produced a crop of hay inferior to that which would have been produced from “White Australian" wheat showed a breach of the contract of warranty, and entitled the plaintiff to at least nominal damages, making the complaint good as against a general denurrer (McCarty v. Beach, 10 Cal. 461). For the same reason the findings of fact in the language of the complaint are sufficient to entitle the plaintiff to a judgment in his favor. The amount of the judgment is to be determined by the evidence offered in support of the averment, and as no objection was made to this evidence, the finding thereon is conclusive.

2. Upon the trial of the cause Frank Myall was called as a witness on behalf of the plaintiff, and was permitted to testify, over the objection of the defendant that the same was incompetent, irrelevant and immaterial, that he bought some seed wheat during that season from the defendant (shown to be of the same lot from which the sale was made to the plaintiff), and that the defendant represented to him that it was “White Australian" seed wheat, but that upon planting it proved to be bearded wheat, and not “White Australian.'

The defendant was a witness in his own behalf, and upon his cross-examination was asked whether he had sold seed wheat to Myall upon the representation that it was “White Australian.” Defendant's counsel objected thereto, on the ground that it was incompetent, irrelevant and immaterial. The court overruled the objection, and the witness answered in substance that he had not. The same objection to a similar question in reference to a sale of seed wheat by him to H. H. Main was overruled by the court, and the same answer given. After the defendant had closed his case the plaintiff called Main as a witness in rebuttal, and he testified that he had bought some seed wheat from the defendant during that season, and that the defendant had warranted to him that it was “White Australian" beardless wheat. This testimony was received over the objection of the defendant that it was not rebuttal, and also that it was in. competent, irrelevant and immaterial.

The points chiefly urged by the appellant are that the court erred in permitting this cross-examination of the defendant, and in allowing the above testimony to be given by the witnesses Myall and Main.

It is contended by the appellant that the testimony given by Myall and Main, to the effect that the defendant warranted that the seed wheat which he sold to them was "White Australian," was res inter alios acta, and had no tendency to show that he gave such warranty to the plaintiff; and that in receiving the testimony of Main the court also violated the rule that when a witness is cross-examined upon a matter which is collateral to the issue he cannot be impeached by evidence in contradiction of his answers on such cross-examination. It is to be noted, however, that the only objection to the cross-examination of the defendant was that the evidence sought was incompetent, irrelevant and immaterial. No objection was made on the ground that it was not proper cross-examination. The objection to the testimony of Main that it was not rebuttal was properly overruled if such testimony was otherwise admissible. It is always in the discretion of the court to permit a plaintiff in rebuttal to offer evidence in support of his cause of action.

The rule in reference to contradicting the answer of a witness given upon cross-examination which is invoked by the appellant does not wholly preclude such testimony upon collateral matters if it is relevant to the issue to be tried. It is only when the cross-examination is upon collateral matters which are irrelevant to the issue that the witness cannot be impeached by contradictory evidence. (People v.

( Dye, 75 Cal. 108, (16 Pac. 537); Crusoe v. Clark, 127 Cal. 341, (59 Pac. 700].) The rule as stated by Mr. Greenleaf, section 449, is: “A witness cannot be cross-examined as to any fact collateral and irrelevant to the issue merely for the purpose of contradicting him by other evidence if he should deny it, and thereby to discredit his testimony." If the collateral fact is relevant to the issue it may be shown either by the cross-examination of a witness or by direct evidence thereof. In Attorney General v. Hitchcock, 1 Ex. 99, Baron Pollock stated as the test whether a matter is collateral or not: “If the answer of the witness is a matter