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118 



The Florists' Review 



OcTOBEU 28. 19W) 



W. A. Wehrenberg has started in 

 business at Navy Yard, S. C, under the 

 name of the Chieora Nursery Co. 



With a capital of $100,000, the Bye 

 Nurseries, Inc., Eye, N. Y., was incor- 

 porated recently by Frederick D. 

 rremd, of Eye, N. Y. 



Demand may not be so strong next 

 spring, for nursery products on the 

 farm, but there is no probability of 

 overproduction next season. 



Announcement has been made that 

 the Eakestraw-Pyle Co., once active in 

 the nursery business in Chester county, 

 Pa., has relinquished its holdings. 



The Utica Nursery Corporation, 

 Utica, N. Y., has been chartered with a 

 capital of $1,200. The directors are 

 Charles G. French and Charles W. Bush- 

 inger, of New Hartford, and Leon F. 

 Snyder, of Utica. 



BBEAOH OF WABSAITCY. 



For Nursery Stock. 



Three points of law were laid down 

 by the New York Supreme court for 

 Orleans county in the recent case of 

 Woodworth vs. Eice Bros. Co., 179 New 

 York Supplement, 722. The first point 

 will interest florists, seedsmen and nurs- 

 erymen alike. The second and third 

 are of special interest to nurserymen. 



On evidence that a buyer, having de- 

 fective eyesight, was unable to read 

 an order blank and signed it on an as- 

 surance from the salesman soliciting it 

 that it contained nothing in conflict with 

 a verbal warranty, it may be held that 

 the verbal agreement governed, despite 

 the general rule of law that a written 

 agreement is presumed to merge all 

 verbal negotiations previously made, ex- 

 eluding proof of any understanding not 

 expressed in the written instrument. 



As determining the time within which 

 suit for a breach of warranty of va- 

 riety of trees sold must be brought be- 

 fore the claim will outlaw, a warranty 

 that peach trees would bear Elbertas 

 and Willetts was not broken until bear- 

 ing disclosed that there had been an 

 actual breach of the warranty. 



A law limiting the time within which 

 a buyer of nursery stock may sue for 

 breach of warranty did not apply to a 

 sale made before the law was enacted. 



In this case the plaintiff sued for 

 breach of a warranty in the sale of peach 

 trees and a jury returned a verdict in 

 favor of the plaintiff. Eefusing to set 

 the verdict aside, the judge of the court 

 said: 



Verbal Agreement May Ctovem. 



"At the time of the sale of the 

 stock, the plaintiff claimed that the de- 

 fendant orally gufu-anteed the trees 

 would bear true to name. The plaintiff 

 stands on this verbal guaranty. It ap- 

 peared upon the trial that after the 

 talk had taken place, the defendant's 

 agent asked the plaintiff to sign a 

 printed order for the trees; that the 



plaintiff, by reason of defective eye- 

 sight, was unable to read the fine print 

 in the order blank and, having asked 

 the agent what it contained, was as- 

 sured by him that it contained only 

 enough to show the firm to whom to 

 ship the trees, and that, uprn that as- 

 surance and in ignorance of the true 

 contents of the written order, the plain- 

 tiff signed the paper. This paper, how- 

 ever, notwithstanding the agent's as- 

 surance to the contrary, did in fact con- 

 tain a provision in substance that if the 

 trees, when they came to bearing, failed 

 to produce the variety of fruit called 

 for, the liability of the defendant should 

 be limited to replacing the defective 

 trees with other trees of the variety 

 stated. On this written agreement the 

 defendant stood, but the court, follow* 

 ing the decision of the Court of Appeals 

 in the recent case of Whipple vs. Brown 

 Bros. Co., 225 N. Y. 243, 121 N. E. 748, 

 submitted to the jury the question 

 whether the contract actually made was 

 that represented by the oral agreement 

 or the written order. The jury found 

 on this issue in favor of the plaintiff. 

 We think the court committed no error 

 in the course it pursued. 



"Certain other questions of much in- 

 terest are involved in this case. The 

 contract for the trees in question was 

 made in December, 1908. The trees 

 were delivered in May, 1909. This ac- 



tion for the breach of the alleged war- 

 ranty was not brought for upwards of 

 seven years after the delivery of the 

 trees. The defendant pleads the statute 

 of , limitations and contends that the 

 warranty, if made,' was broken at the 

 time of delivery and that, since more 

 than six years have elapsed before suit, 

 the action is barred by the statute. This 

 contention brings us to the considera- 

 tion of the nature and character of the 

 warranty claimed to have been made. 

 According to the testimony of the plain- 

 tiff and his wife, the plaintiff said to the 

 agent, 'If you wUl guarantee the trees 

 to be true to name, I will order 750 

 Elbertas and 400 Willetts of the kind 

 that you describe,' and the agent re- 

 plied, 'We will call that a bargain.* 

 Question: 'Do you recall anything else 

 that was said at that time by himf 

 Answer: 'Why, he said they would be 

 all right; just as he — as they recom- 

 mended them to be.' The plaintiff's 

 wife corroborated her husband's testi- 

 mony as to the conversation between 

 her husband and the agent. 



Proof of Breach in Future. 



"It seems to the court that the legal 

 force and effect of this agreement and 

 the intention of the parties must be 

 gathered from the nature of the transac- 

 tion and the surrounding circumstances 

 of the case. It was stated on the trial 



Don't Worry :?S'«™ *?JSS 



—We can supply your wants in 1000 lots or more. 



Ampelopsis Veitchii, 2 or 3-year. Hydrangeas. 



Clematis, assorted. Roses. 



Spiraea Anthony Waterer. Sliade Trees and Ornamentals. 



Barberry Thunbergii, Heavy, 5,000 and 10,000 lots. 

 Large Fruit Trees, for florists' and city trade. Bear sooner, retail 

 higher, larger profit. Apple, Cherry, Pear and Plum. 1 to 1^, 

 1^4 to 1^. 1^ to 2-inch stems. 



Write for Varieties and Prices. 

 Immediate delivery on Peonies, Japan Iris, Siberian Iris, German Iris. 



Onarga Nursery Company 



CULTRA BROS., 

 Managers 



Onarga, Illinois 



Mention The Berlew when yoa writs. 



PEONIES 



Write for our nevr list 



JUST ISSUED 



Shenandoah Nurseries 



0. S. LAKE, Pres. SHENANDOAH, IOWA 



Evergreens, Peonies and Iris 



If you are Interested tn theoe yoa are Inter- 

 ested In us, as we have a nice lot for early fall 

 delivery. We-also grow a full line of fruit and 

 ornamental stock. WRITE FOR PRICES. 



FARMERS NURSERY CO., 



TROY, OHIO 



PEACH TREES 



Fine Trees . . . Standard Vttrietief 

 50,000 Trees, Straifkt and Well Rooted. 



W.T. MITCHELL & SON, BeTerly, Ohii 



ENGLISH LAUREL 



BT THI HUNDRED OR THOUSAND 



THE AUIBOR IMSEIY 



WILMniTN. 1. C. ■. ffEIZUL, Pn». 



