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The Florists' Review 



NOVBMBEK 20, 1910. 



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NEWS OF THE NURSERY TRADE 



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31 IE 



The office of the new executive secre- 

 tary of the A. A. N., John Watson, is at 

 400 Nassau street, Princeton, N. J. 



R. C. Meneray, one of the veterans in 

 the trade, has bought the nursery of the 

 L. H. Smith Nurserv Co., at Council 

 Bluffs, la. 



IMPLIED WARRANTY. 



In Sale of Nursery Stock. 



A decision of the California District 

 Court of Appeal in the case of Elmer 

 Bros. vs. Carpenter, 183 Pacific Re- 

 porter, 566, denies plaintiffs' right to 

 recover the full amount of two notes 

 given for the price of fruit trees sold 

 to defendant. The decision leaves out 

 of consideration a claim by defendant 

 that there was an implied warranty 

 that the trees were in sound condition, 

 proceeding uj)on the theory that de- 

 fendant was entitled to defeat liability 

 on the notes on the ground that there 

 was an express warranty, which had 

 been broken. 



The suit was brought on two promis- 

 sory notes given to cover the price of 

 1,200 fruit trees. The trial judge found 

 from the evidence in the case that the 

 notes were wholly without considera- 

 tion, excepting as to $.")2.60 which de- 

 fendant received from third i)arties on 

 a resale of part of the stock and for 

 which the court gave ])laintiffs .judg- 

 ment; that consideration for the notes 

 failed because the trees were sold to 

 defendant without previous opportunity 

 for inspection and under misrepresenta- 

 tion that the trees were good, sound and 

 healthy, and not diseased, and that the 

 stock delivered was diseased with a 

 black rot and was condemned under 

 the statutes of California as being un- 

 merchantable. Plaintiff appealed from 

 this judgment to the District Court of 

 Appeal, but that tribunal has affirmed 

 the decision of the lower court. 



Question of Warranty. 



On appeal tlie principal points made 

 by the attorneys for the plaintiffs was 

 that the trial judge erred in finding that 

 there was an implied warranty in the 

 sale of the trees. Disposing' of this 

 question the appellate court says: 



"Appellant then proceeds to argue, 

 with quotations from certain cases, that 

 the facts are not sufficient to show an 

 implied warranty, the point of conten- 

 tion being that "the general rule is that 

 there is no implied warrantv in a mere 

 contract of sale (section" 1764, Civ. 



Code), and that the evidence does not 

 show the case to be within the excep- 

 tion provided in section 1771 of the 

 same code, as follows: 



" 'One who sells or agrees to sell 

 merchandise inaccessible to the exami- 

 nation of the buyer, thereby warrants 

 that it is sound and merchantable.' 



"The matter is discussed because, 

 among the conclusions of law, the trial 

 court stated: 'That there was an im- 

 plied warranty that the fruit trees sold 

 by plaintiff to defendant, for which said 

 notes were given, were merchantable.' 



Consideration for Notes Failed. 



"But it is clear that this may be en- 

 tirely ignored without affecting the in- 

 tegrity of the judgment. The court 

 fully found the facts as we have shown, 

 from which the conclusion necessarily 

 follows that the consideration for the 

 notes failed, except as to the said $52.60, 

 and that plaintiff was entitled to a 



judgment for only that amount. In- 

 deed, from the facts the court properly 

 concluded: 



" 'That the consideration for said 

 notes failed by reason of the unmer- 

 chantable character of the trees sold, 

 except to the extent of $52.60, value re- 

 ceived by said defendant; that plain- 

 tiff is entitled to judgment in the sum 

 of $52.60 without costs.' 



Express, Not Implied, Warranty. 



' ' The force and validity of these 

 findings are not affected in the least by 

 the erroneous inference that there was 

 an implied warranty, instead of stating 

 it to be, as it was, an express warranty. 



"We may add that as to this objec- 

 tion urged by appellant there is evi 

 dence in the record to the effect that 

 when the trees were purchased they 

 were not accessible to the examination 

 of respondsrrt, as that term should be 

 applied in a case like this, and the court 



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Azalea Hinodigiri, the most valuable variety 

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Order now, if desired. 

 Can also supply pot-grown AMPELOPSIS 



THE ELIZABETH NURSERY CO. 



ELIZABETH, NEW JERSEY 



IBOLIUM 



The New UAOnV DDIUCT <■- Ibota X 

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Now sent out for the first time. Inquire for further information. 

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Introdocert oi BOX BARBERRY. Well rooted frame cuttings. 

 $65.00 per 1000. 



THE ELM CITY NURSERY CO 



Natural Habit WOODMONT NURSERIES, lac. ntVI nAVLN, CUPIN. When Ti 



FARMERS NURSERY CO 



Troy, O, 



FRUIT TREES, 

 ORNAMENTALS. 

 SHRUBS, PERENNIALS 



GET OUR 

 PRICES 



NURSERY STOCK for Florists' Trade 



Prait Trees, Oniaiiie«tal Trees, Shrubs, Smal fruits, Roses, Clematis, Phlox, Peonies, Heitaceous Perenniab 



Writ* for our wholMato trad* list. 



7SYKAIIS Wa & T- SMITH COMPANY IOOOACRU 



GENEVA, N. Y. 



