18 



The Florists^ Review 



Septembbb 11, 1919. 



is'fotion «Mid 



L^5^ DeciSS 



COMPLIANCE WITH CONTBACTS. 



Questions Peculiar to Trade. 



Although contracts for the sale of 

 floral, nursery and seed stocks are gov- 

 erned by the same general principles 

 applicable to sale of personal property 

 in general, their particular nature gives 

 rise to important and interesting ques- 

 tions which are not always readily de- 

 terminable on a reference to general 

 principles. 



An instructive decision under this 

 head was handed down by the Penn- 

 sylvania Superior court, in a suit in 

 which the validity of defenses against 

 liability for the purchase price of cer- 

 tain imported shrubs and plants was 

 determined by that court. 



The first item of the defense rested 

 on a claim that certain plants were not 

 of the height called for by the contract 

 of sale. This point was ruled against 

 the buyer, because it appeared that he 

 ' jcepted delivery, i)aying duty and 

 ocean freight on the plants, after full 

 opportunity for inspection, and that no 

 objection to the height of the plants 

 was signified until the suit was brought, 

 more than a year after delivery. Under 

 these circumstances tlie court said: 



"The size of the plants was a matter 

 that would become evident as soon as 

 the defendants received thom and they 

 were at that time required to inspect 

 the goods. The duty was upon the de- 

 fendants, after a reasonable time for 

 inspection, to either acceiit or reject the 

 yoods, and if rejected, to promptly no- 

 tify the plaintiffs." 



Breach of Warranty, 



But other defenses were resolved in 

 favor of the defendant buyers. As to 

 one of the items of goods sold, it ap- 

 j)eared that the plaintiffs, the sellers, 

 had informed defendants that certain 

 plants were hardy in the American cli- 

 mate and that these plants were bought 

 on the strength of the representation — 

 the buyers not being familiar with the 

 particular variety arid so advising the 

 sellers when the contract was entered 

 into. It was claimed by defendants that 

 the plants failed to stand the American 

 climate, although given proper care and 

 attention, and that they proved to be 

 worthless solely because they were not 

 as warranted. 



"Here was a distinct allegation of an 

 express warranty in the contract of sale, 

 that the purchase was made on the faith 

 of the warranty, and followed by the 

 distinct allegation that the plants, al- 

 though they received proper care and 

 attention, all died and were worthless 

 solely because they were not hardy, as 

 warranted," says the court. "When 

 there is a warranty of a particular qual- 

 ity in an article of merchandise, and the 

 article is found to be deficient in that 

 quality and totally worthless because 

 of that deficiency, there is no rule of 

 either law or morals which requires a 

 purchaser to pay the full contract price. 

 He has not received the thing which 

 under his contract he is entitled to have. 



The afiidavit alleged, as to this item, a 

 good defense. The defendants would 

 also be entitled to credit upon the ac- 

 count for the amount of duty and 

 charges which they had been required 

 to pay on these worthless plants, as 

 damages for the breach of warranty 

 upon which they had the right to rely. ' ' 



Stock Not True to Name. 



On the third item of the account it 

 appeared that the buyers had bargained 

 for a quantity of conifers, and they as- 

 serted that the plants delivered were 

 not true to variety, became wholly 

 worthless and died because they were 

 not of the hardy variety they were rep- 

 resented to be. It seems that one con- 

 dition of the contract of sale was that 

 ' ' the seller is not responsible for the 

 result of planting of any goods sent out; 

 he guarantees only all varieties to be 

 true to name and description. ' ' 



"This being the case," remarked the 

 court, "it would seem to be too clear to 

 require discussion that the defendants 

 were entitled to receive the variety of 

 plants which they had ordered, before 

 they could be required to pay at the 

 rate agreed upon. If the allegation of 

 the affidavit is true, the defendants had 

 ordered one variety of plant and the 



plaintiffs delivered another variety, 

 which was worthless. This was a good 

 defense as to this item of the claim. 

 The defendants would also be entitled to 

 have deducted from the bill the amount 

 of the duty and charges which they had 

 been required to pay upon the plants 

 embraced in the item." 



Plants Not Ordered. 



According to the report of the ease, 

 the last item of the account covered a 

 number of lilac plants. The defense 

 against liability on this item rested on 

 a claim that no such plants were or- 

 dered, and that they were accepted only 

 on an agreement with the plaintiffs' rep- 

 resentative that defendant's would take 

 them and make the best use of them pos- 

 sible. Defendants paid about $50 duty 

 and freight on these plants and claimed 

 that after giving the plants proper care 

 and attention they were unable to real- 

 ize even that amount of money on them. 

 Disposing of this item, the court says: 



"If these allegations be true, the de- 

 fendants had never ordered these goods; 

 they had never purchased them from 

 any person. They had merely, at the 

 request of an agent of the plaintiffs, re- 

 ceived the goods, taken care of them, 

 and endeavored to make the best use of 

 them possible in the interests of the 

 plaintiffs, and in doing so they had paid 

 out more money than they had received. 

 The plants still in the possession of the 

 defendants may be the property of the 

 plaintiffs, who are entitled to have them 

 on demand, but the defendants have not 

 expressly agreed to buy them at a price 

 agreed upon, as the plaintiffs in their 

 statement had averred." S. 



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MOTT~LY MUSINGS 



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Philip J. Foley, of Chicago, was a late 

 visitor at the gardeners' convention at 

 Cleveland, but arrived in time to greet 

 the veterans and to give the budding 

 gardeners some valuable advice in his 

 usual happy vein. 



• • • • 



.fames McLaughlin, of the .1. M. Gas- 

 ser Co., was missed in the crowd at 

 Cleveland. He was on his annual vaca- 

 tion at the time. 



• • • • 



While in the atmosphcrt- of conven- 

 tions William Dilger, of .1. Breitmey 

 er's Sons, Detroit, lie of landscape fame, 

 distributed melons to fortunate recip- 

 ients, doing the cutting and commenting 

 upon the suggestiveness of the occasion. 



• • * • 

 Commenting upon the increase in their 



linsiness, Earl Metz, of Metz & Bateman, 

 Toledo, O., stated that while part of it 

 is sympathetic with the growth of the 

 city, larger credit is given to publicity 

 in its various 'forms. "Constant plug- 

 ging" was the exact phrase used. "Our 

 <>utsi<le connection," observed Mr. 

 Metz, "has increased by leaps and 

 hounds. For this we are indebted to 

 the F. T. D. and the Pink Section of 

 The Review, for evidently this order," 

 producing a telegram from an eastern 

 florist for a standing wreath to cost 

 $100, among other items, "came through 

 the latter medium, as the sender is not 

 a member of the F. T. D. We assume he 

 saw onr card in the Pink Section." 



' ' Doctors being away on vacations, ' ' 

 was suggested by an undertaker as the 

 possible cause for the absence of fu- 

 neral work. 



• • • • 



Mrs. E. Suder, of Toledo, returned in 

 due time from attending the convention 

 and comments favorably upon the busi- 

 nesslike proceedings as compared with 

 conditions two decades ago, when sports 

 held a prominent position. Mrs. Suder 

 had the distinction of being the oldest 

 retailer at the convention. 

 • • • • 



W. .7. & M. S. Vesey, Fort Wayne, 

 Ind., have for some time devoted a 

 range to the growing of lettuce, toma- 

 toes and chrysanthemums, rotating the 

 crops. These three have been grown 

 four years in the same soil, turned over 

 and manured at each planting. Where 

 lettuce and tomatoes were solely grown, 

 six crops of the former and three of the 

 latter were successful. They were grown 

 in soil that had been used for several 

 seasons for roses, thus effecting a great 

 saving in labor and material. It is 

 agreed that roses and carnations thrive 

 best in virgin soil. Promising crops of 

 these were noted. Chrysanthemums arc 

 also in fine shape. Orchids are a val- 

 uable asset and Judge W. J. Vesey, who 

 has just returned from a fishing trip, 

 observed, "The best catch made was 

 what was believed to be a good orchid 

 grower. ' ' W. M. 



