702 



HORTICULTURE 



November 18. I!tll 



Seed Trade 



The Seed Disclaimer Upheld. 

 The following Supreme Court de- 

 cree will be of considerable interest 

 10 the American seed trade: 



state of Wisconsin: In Supreme Court- 

 Leonard Seed Company, Plaintilt and Re 

 spoudeut, vs. The i mrj Canning Company, 

 Defendant and Appellant. 



On February I 1, 1908 plaintiff and de 



m entered Into a contract wherebj 



the plaint Iff agreed to sell t.. the defendant 



certaiu earietles ol Beed peas. A ng 



other things, the plaintlfl agreed t.> fur- 

 nish one thousand bushels >>f "AdTancer" 

 peas, sueh peas were to be grown during 



the Beas ( 1908, t" be delivered after 



ist, bul in season for the planting 

 ii ide tor the year 1909. A quantity of 

 peas was delivered under this contract to 

 defendant, it giving its promissory 

 notes in payment therefor according t" 

 the terms of the contract. The pea- so 

 sold were in turn sold by the defendant 

 to various farmers for the purpose of 

 planting, and under contracts by virtue 

 ..;■ which the farmers agreed to sell tin- 

 peas raised from such seed t<> the de- 

 fendant. The plaintiff brought action upon 

 the miles. The defendant, among other 

 things, interposed a counterclaim setting 

 forth that the peas furnished "ere not 

 "Advancer" peas; that they were received 

 by the defendant without knowledge of 

 that tact; Hi. it there was no means of dis- 

 covering that they were not "Advancer" 

 peas until after they had been Sowed and 



the seed bad germinated) and that as soon 

 a- the defendant discovered that the peas 

 were not of the variety purchased it noti- 

 fied plaintiff. The counterclaim further set 



forth that the peas were mixed with other 



different varieties, making it impossible to 

 harvest them without a mixture of over- 

 ripe peas of varieties other than "Advan- 

 cer." Facts tire pleaded tending to show 

 damage, and Judgment is asked for the 

 amount thereof. On the trial the court 

 allowed the defendant to amend its answer 

 by setting tip a new counterclaim for the 

 purchase priee of the peas. The trial court 

 laid that the peas were sold without war- 

 ranty as to quality .o- description, and 

 directed a verdict for the plaintiff for the 

 nmount claimed, less $343.75. The peas 

 were shipped from Chicago and invoiced 

 on the basis of fifty-six pounds to t lie 

 bushel. The court held that the de- 

 fendant was entitled to receive sixtj 

 pounds per bushel, ami hence made the 

 tor. going reduction. From a judgment in 

 plaintiff's favor defendant appeals. 



The contract for the sale of the peas con- 

 tained the following provisions: 



"It is also understood and agreed that 

 the party of the first part (Plaintiff) does 

 ii ^ive. and its agents and employes are 

 forbidden to give, any warranty, express 

 or implied, as to description, quality, pro- 

 ductiveness, or any other matter, of any 

 seeds, delivered or to be delivered by it, 

 and that it is not, and will not be in any 

 way responsible for the crops." 



Counsel for the appellant admit "that 

 plaintiff is freed by the terms of this con- 

 tract from all liability as to the seed in 

 question being good or bad, large or small, 

 wrinkled or smooth, black or while, wormy. 

 sound, vital or dead." Rut counsel argue 

 that the peas furnished under the contract 

 must lie of the "Advancer" variety and 

 that plainiff was not relieved by its con- 

 tract from liability for dami-e resulting 

 from furnishing peas other than "Advancer" 



peas ft was practically conceded on the 



argi nt that the clause quoted was Mi- 

 ll to exempt the plaintiff from such 

 liability as was sought to l.e enforced 

 against it under the counterclaim in this 

 action. The concession was advisedly made. 



The i s to he delivered under tin i 



tract were described therein as "Advancer" 



Rut the contract provided that no 



warranty express or implied was given 



that the peas furnished should I f the 



description named therein If a dealer in 

 seed pens caii exempt itself from liability 

 for selling had. wormy or dead peas to a 

 --lower, no good reason is apparent why 

 it cannot go further and say that it will 

 '"'i lie responsible in the event "f an in- 

 termixture "f other peas with the varietv 

 agreed to he furnished. Neither of the 

 parties here are under guardianship or 

 incompetent to contract. There is no claim 

 that the contract signed was not the one 

 ft'-ireed upon or that both parties did not 

 fully understand what they were agreeing 

 t". Plaintiff plainly undertook to relieve it- 



New Times, 

 New Things 



The old fertilizer 

 formulas are giving 

 way to the new. At 

 cveryfarmers' meeting 

 ii'iic subject should he 

 tin' fertilizer formula 

 that will furnish a balanced ration to the crop and keep up the fertility 

 of the soil. To do this the fertilizer should contain at least as much 



POTASH 



as Phosphoric Acid. Our note book has condensed facts essential 

 in farmers' meetings and plenty of space to record the new tilings 

 that you hear. Let us send one to you before your Institute meets. 



A supply of these is furnished by request to every institute held in several states. 

 We will be glad to send a supply delivered free of charge to every Institute, Grange 

 or Farmers' Club Officer on request. It contains no advertising matter. 



GERMAN KALI WORKS, Inc. 



Continental Building, Baltimore, Md. Monadnock Block, Chicago, HI. 



93 Nassau Street, New York 



self from liability in case of intermixture, 

 .and defendant agreed that it should be 

 relieved, it is not claimed that the con- 

 tract is void because contrary to public law 

 or to public policy, and. if not, effect should 

 l»e given to it. The vender might reject 

 and refuse to receive the peas if they were 

 not "Advancer" peas, or it might well bo 

 that in the event of the shipment being 

 made in had faith, and with the purpose 

 and intention of committing fraud upon 

 the vendee, an action for damages for the 

 fraud would lie. but we have no sueh case 

 before us. If it Ik- conceded that the con- 

 tract is one-sided, it must also be conceded 

 that the parties had a right to make a one 

 sided contract if they saw fit. 



Counsel for appellant cite the following 

 authorities to sustain the contention that, 

 notwithstanding the agreement of the par- 

 ties, there was a warranty th.it the peas 

 sold would answer the description con- 

 taiued in the contract, or in any event that 

 there was a breach of a condition of the 

 contract by the failure of the plaintiff to 

 furnish the thing cent racted for. Josling 

 v. Klngsford, IS ('. B. (N. S.) 447; Colum- 

 bian I. \\\ & D. D. <'o. v. Douglas 33 

 L. R. A. 10:; ; Shepherd v. Kain, 5 R. & Aid. 

 240; Allan v. Lake, 18 Q. B. 560; Weiler v. 

 ftchilizzi, 17 C. R. 619. These cases do not 

 hold that a party selling an article under 

 a designated name may not relieve himself 

 from liability in his contract of sale, in the 

 event that the article delivered does mil 

 answer the description contained in the 

 contract. Some very general language is 

 Psed in t lie contracts of sale involved in 

 the cases cited, ami in some of them it 

 inighl well be construed as being broad 

 enough to extend to i he description of the 

 article, hut in none of the cases has it 

 been so construed. Those « asos were de- 

 ci.ied upon the theory that this general 

 language was intended to refer to the qual- 

 ity of the article furnished and not to the 

 description <>f the article itself, in Taylor 

 \. Buileii. " Excheq. Reports, 77!>. where 

 in article was sold and the party under- 

 took to relieve himself from liability in 

 his contract of sale by stating that he 

 would not he liable for "any defect or error 

 whatsoever," it was hold that the won! 

 "error" was broad enough to Include an 

 error in description as well as an error in 

 quality, and that their- was no liability on 

 tin- part of the vendor, oven though the 

 article furnished did not answer the de- 

 scription nf the article contracted for. 



If the seller expressly refuses to war- 

 rant, tbere can be no excuse for raising an 

 implied warranty. Habersham v. Rodrigues, 

 1 Specs (S. C.) -".1-1: Farr v. Gist, 1 Rich. 

 Raw (S. C), 68; Pauntelroy v. Wilcox. 80 

 ill. 477: Lynch v. Curfman, 65 Minn. 17m 



The case of Blizzard Brothers v. Growers' 

 Canning Co., 132 X. W. (la.) I7i*,. is directly 

 in point. There a packet was marked 

 •Larue cheese pumpkin seed" and sold as 

 such, w lieu in fact it contained "Connecti- 

 cut pie pumpkin seed" mixed with a few 

 squash. On the package the following war- 



ranty was printed: "While we exercise 

 great care to have all seeds pure and re- 

 liable and t rm- to name, our seeds are sold 

 without any warranty, express or implied, 

 and without any responsibility in respect to 

 the crop." There was no* evidence to 

 Show that the purchaser read this war- 

 ranty, but there was evidence showing that 

 1 1 was a general custom among seed men 

 to --ell seeds without warranty as to qual- 

 ity ami as to true name, and such custom 

 was held to he bind big upon the purchaser. 

 A contract deliberately entered into between 

 two parties exempting one of them from 

 liability in ease seeds sold are not true to 

 name, should he as binding as a custom 

 among dealers not to sell with a warranty 

 that the seeds furnished are true to de- 

 scription. 



As before stated, we do not bold that, 

 if the plaintiff acted in bad faith and with 

 the intention of deceiving and defrauding 

 the defendant, or even if it failed to exer- 

 cise ilue care and caution in selecting the 

 seed, the hitter woald not have a cause of 

 (Continued on page 704) 



Hybrid Orchids 



I FLOWERED AND 



UNFLOWERED.... 



Julius Roehrs Co. 



1 Rutherford, N. J. * 



CYPRIPEDIUM CAUDATUM 



We have received a small importation of 

 this almost extinct orchid and can offer 

 a limited number of same at moderate 

 prices. Write for particulars. 



LAGER & HURRELL, sl >^" T 



ORCHIDS 



Largest Importers, Exporters, Growers 

 and Hybridists in the World 



SANDER, St. Alban's, England 



and 258 Broadway, Room 721 



NEW YORK CITY 



ORCHIDS 



PLANTS >nd FLOWERS »!*•>•• on hind 



ORDONEZ BROS. 



Madison, New Jersey 



