April 19, 1919 



HORTICULTURE 



379 



LOCAL AND GENERAL NEWS 



ROCHESTER. 



George DeMuth, who has been with 

 the U. S. Army, has returned to this 

 city and taken his old position with 

 George B. Hart. Joe Werdeen is with 

 Geo. Boucher for the Easter Rush. 

 Charles Gorr will help out during the 

 busy season at the Rochester Floral 

 Co. 



At the florist Club meeting, April 

 11, Geo. T. Boucher was elected presi- 

 dent and Geo. Keller vice-president. 

 Harry A. Barnard gave a talk on nur- 

 sery conditions in England. 



CHICAGO. 



W. M. Schluetter has resigned as 

 secretary of The Foley Greenhouse 

 Mfg. Co., to take effect April 30th, 

 and on that date will sever all con- 

 nections with the firm. For the past 

 four years he has had charge of the 

 drafting, estimating, order and con- 

 struction departments, and during that 

 time has made quite a few friends, 

 amongst the greenhouse owners. He 

 has not as yet made any definite 

 arrangements for the future. 



The floral decorations for the open- 

 ing of spring at the Marshall Field 

 store have all turned to gold with the 

 ushering in of the Victory Loan cam- 

 paign. The flags of the United States, 

 England, Belgium, France and Italy 

 are mingled with the exquisite drap- 

 ings of victory red, bordered with 

 broad wreathings of gold and drape 

 the main aisle, which is in reality a 

 thoroughfare of nations. The hanging 

 baskets high overhead have the same 

 gold leaves with green and on the 

 large pedestals stand the bronze fig- 

 ures of the soldiers of the five nations 

 holding their respective flags. 



PHILADELPHIA. 



Wm. Robertson, for twenty-three 

 years superintendent on the John W. 

 Pepper estate at Jenkintown, leaves 

 there on the 22nd inst. He has not 

 quite decided yet as to his new affili- 

 ations but the probabilities are that 

 he will go into business for himself — 

 with his two sons, who have been 

 brought up and educated along horti- 

 cultural lines both practically and in 

 college. There Is a good opening for 

 just such experience and training at 

 the present time and we look forward 

 to interesting developments. 



BOSTON. 



At the monthly meeting of the Gar- 

 deners' & Florists' Club on Tuesday 

 evening, April 15th, Geo. N. Smith of 

 Wellesley gave a very interesting pa- 

 per on Community Betterment. 



The windows of Welch Bros. Co. 

 were a riot of color the past week, 

 with choice specimens of forced rhodo- 

 dendrons, rambler roses, bougain- 

 villeas and hydrangeas. 



THE BUYER THAT WAS A LITTLE 

 TOO SHREWD. 



Here is a case which will interest 

 everybody: 



Philadelphia, Pa. 



On October 26, 1918, we got an order for 

 a carload of goods to be shipped from Cali- 

 fornia, from a Philadelphia buyer. We 

 made out a regular form of printed con- 

 tract containing the usual arbitration 

 clause. It provided for shipment before 

 November 5th. At that time you had to get 

 a permit from the Railroad Board to bring 

 things in, and this permit could only be 

 gotten by the consignee, and then had to 

 be put in the handa of the shipper before 

 the goods could start to their destination. 



After this contract was signed, the buyer 

 applied for a permit and got it on Novem- 

 ber 4th, which was the day before shipment 

 was to be made. Instead of cancelling the 

 contract because shipment could not be 

 made in time, he turns it over to us to be 

 sent to California, evidently intending 

 shipment to be made. The permit got out 

 there on November 8th, and the car was 

 loaded and started East on November 14th. 



The goods were sold sight draft, bill of 

 lading attached, and the draft came on 

 here and was presented to the buyer on 

 November 28th. At the time the market 

 had gone off about 75 cents a cwt., and he 

 refused payment, stating as his reason that 

 shipment had not been made before Novem- 

 ber 5th, as provided by the contract. We 

 were obliged to resell the car at a loss of 

 about $1,000. Have we any case against the 

 buyer of these goods? It is of course true 

 that shipment was not made before Novem- 

 ber 5th. Do not use our name. 



P. R. — He refused to arbitrate— can he be 

 compelled? 



One can see the shrewd mind of this 

 buyer working expertly when he made 

 this contract. "I will put in a date of 

 shipment that they probably won't be 

 able to comply with. If the market 

 isn't off when the goods come in, of 

 course I'll take them. If it is off, I'll 

 reject on the ground that shipment 

 wasn't made in time." It is an old 

 trick, and variations upon it have been 

 worked very many times. Often it Is 

 successful, but in this case I am clear 

 that it will not be successful, for the 

 buyer, when he handed over the per- 

 mit at a time when he must have 

 known it couldn't be sent to California 

 and shipment made in the brief time 

 remaining, waived his right to reject 

 the goods on that ground. 



Just a word about the arbitration 

 clause in contracts of sale. It is a 

 clause binding both parties, if dispute 

 arises over quality or shipment, to 

 settle it by arbitration instead of In 

 court. The clause is worthless: either 

 party can refuse to be bound by It pro- 

 vided he declares that intention before 

 arbitrators are appointed. The arbi- 

 tration clause is a good thing to have 

 in selling contracts, but carrying It out 

 depends wholly on the will of the 



parties, for they are no more bound by 

 it after they sign it than before. 



To go back to the question of 

 waiver, let me explain that. A man 

 who has a right upon which ordinarily 

 he can stand, waives it, or loses it, 

 if he lets the psychological moment 

 pass without using it. In every busi- 

 ness transaction there is a time to 

 speak and act in a certain way. If 

 the time goes by without the word, or 

 the act, it is too late; the right is 

 waived. 



So with this buyer. When his per- 

 mit came through on November 4th, 

 it was perfectly obvious that shipment 

 could not be made before November 

 5th, because that meant that the seller 

 only had until the last minute of 

 November 4th. The buyer could then 

 have cancelled the contract on the 

 ground that it was Impossible for the 

 seller to co'mply with the clause as to 

 time of shipment. Instead of that, he 

 handed over the permit for transmis- 

 sion to California, at a time when he 

 knew shipment could not be made be- 

 fore November 5th. In my judgment 

 that waived his right to insist on ship- 

 ment before November 5th, and the 

 seller had a reasonable time after that 

 in which to ship. I think you can re- 

 cover all your loss from this buyer. 



The law governing cases like this Is 

 very well settled. A man must not 

 sleep on his rights, but must exercise 

 them at the proper time. I remember 

 a case in which an order blank con- 

 tained these words: "The foregoing 

 contract Is subject to approval of an 

 executive officer of the party of the 

 first part. It shall not be binding upon 

 the party of the first part until so ap- 

 proved, and if this proposal or con- 

 tract is not ratified by party of the 

 first part within five days, then this 

 proposal of the party of the second 

 part and this contract shall be null 

 and void." 



A buyer signed the blank and the 

 order was sent in, but the seller 

 didn't send any notice of approval. 

 The goods covered by the order, how- 

 ever, were shipped. The seller tried 

 to avoid delivering them, however, and 

 the question arose, was there a bind- 

 ing contract of sale, when no notice of 

 approval or disapproval had been 

 given and when the contract itself 

 said that without such notice it would 

 be void. The court said the order was 

 good without the notice of approval. 

 "If the goods were shipped, the buyer 

 had the right to consider that an ac- 

 ceptance of the proposed contract or 

 an approval of the same In the terms 

 as submitted. If the buyer submitted 

 a proposal to the seller for approval, 

 and if the seller shipped the goods 

 called for without notice to the buyer 

 of approval or disapproval, it would 

 In law amount to an acceptance of the 

 proposal in the terms submitted." 



In other words, when the seller 

 shipped the goods without formally 

 approving the contract, he waived his 

 right to stand on that because he 

 didn't exercise it at the proper time. 



(Copyright, March, 1910, by Elton J. 

 Buckley.) 



