444 MINNESOTA STATE HORTICULTURAL SOCIETY. 



after a few days send them back. He has, however, the right to 

 open the shipment and examine the plants and then reject them 

 if not according to contract. If he fails to reject promptly, his 

 only remedy is to accept the shipment and recoup himself in dam- 

 ages on the ground of breach of warranty. 



In this connection it may be worth while to say a word or two 

 about the remedy of the nurseryman in case of unlawful cancella- 

 tion. Even if the same be unlawfully cancelled, he has no right 

 to make shipment notwithstanding the same, but can sue only for 

 the actual damage suffered by him for the loss of his contract of 

 sale. He is further obliged to reduce the damage as much as 

 possible by trying to sell the plants to other persons, and, of course, 

 if the goods are sold at the contract price he suffers no loss and 

 can only collect nominal damages at the best. If he is obliged to 

 sell for less than the contract price, he is entitled to hold the cus- 

 tomer for the difference between the sale price and the contract 

 price. If the plants have no market value, the contract price less 

 the cost of shipment is the measure of damages. 



From this you will see that, as a general rule, cancellation of 

 contract even though illegal is usually effective and does not re- 

 sult in punishment to the customer by reason of the slight damages 

 and the cost of recovering them. 



Another question often arises in the mini of the nurseryman 

 upon the receipt of an order for plants which he may be out of. 

 It is this : Can I substitute another variety in place of the one 

 ordered? The actual doing so is perhaps one of the sources of 

 the greatest amount of friction between the nurseryman and his 

 customer and may lead to expensive litigation. Af, a general prop- 

 osition I answer "no" to the question, with the reservation that 

 if the substituted plants or varieties are accepted by the customer 

 with the knowledge of the substitution he must pay for them as a 

 matter of course. 



It may further be asked : Suppose in the catalogue or order 

 sheets there is a printed clause reserving the right to substitute 

 other varieties if out of those ordered. Even then I should say 

 a substitution cannot be made without the express consent of the 

 customer to the particular substitution, except in a very limited 

 degree. If the plants shipped are a substantial performance of 

 the order, so that the difference in grade, variety or plant is not a 

 material one to the customer, then it can probably be made, but 

 each case must depend upon its own facts and circumstances. If 



