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104 



The Florists' Review 



OCTOBIR 21. 1920 



Competition Is Life 



Aug. Lagarde 



Again-^ 



Buy Your French Bulbs 



— Now 



FROM 



Lagarde & Vandervoort 



OLLIOULES, FRANCE 



Mail address: Care MALTUS & WARE 

 116 Broad Street, NEW YORK CITY 



Our repreamntative will be calling on you 



damages, aiul that the defendant was 

 entitled to judgment. 



Loser Should Have Lessened Loss. 



Disposing of the case on appeal, the 

 Supreme court said: 



"The damages of $240 represent the 

 loss which was sustained by the plain- 

 tiff and which the court held he should 

 Iiave lessened. To what extent a rea- 

 sonable effort would have mitigated the 

 damage docs not appear. The plaintiff 

 was not deprived of all danfkges be- 

 cause he neglected to diminish his loss 

 by replanting. He should have his dam- 

 ages less the amount by which he should 

 have reduced them. There should have 

 been an ascertainment of this fact. 

 Judgment should not have been directed 

 for the defendant upon the findings as 

 recited. 



"The finding that it was customary 

 in good husbandry to replant missing 

 hills, that it was the usual practice to 

 supplement the first planting by a suc- 

 ceeding planting and that this course 

 was adopted l)y ordinarily prudent men 

 in the raising of corn, was not based 

 upon evidence. Judicial notice of su«li 

 facts wa.« taken. 



"Judicial Notice" Not Sufficient. 

 "Courts take ''judicial lotice' of 

 matters of common knowledge, of the 

 notorious facts of commerce and in- 

 dustry, of the general succession of 

 seasons, of general climatic conditions, 

 of seed time and harvest time, and the 

 general course of agriculture. We are 

 constrained to hold, however, that upon 

 the issue before us judicial notice can 

 not take the place of etidence in de- 

 termining the custom as to the replant- 

 ing of corn which does not germinate; 

 nor can there be rested upon such no- 

 tice a legal duty of the plaintiff, in the 

 situation presented by the evidence, to 

 replant. So much depends upon the 

 character tjf the season, the time of the 

 original planting, the local climatic con- 

 ditions at the time when the failure to 

 germinate is ascertained, the nature of 

 the soil, the latitude and the particular 

 location, that it is unsafe to rest the 

 duty of the defendant to replant, upon 

 which a legal right or liability is based, 

 upon a custom judicially noticed. What 

 the plaintiff's duty is in the particular 

 situation should be determined as a 

 fact upon a consideration of evidence 

 directed to the issue. 



J. A. Vandervoort 



SUPREME 



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