92 



The Florists' Review 



July 9, l»i4. 



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fendant offered the tobacco seed in 

 question for sale without a warranty, 

 as it had the right to do, and adopted 

 reasonable and adequate means of ad- 

 vising the purchaser Morton that the 

 seed was so offered, and in so doing 

 performed its full duty to the pur- 

 chaser, there being no evidence of 

 fraud or bad faith; (2) Morton was 

 chargeable with knowledge of the con- 

 dition upon which the sale was made; 

 and (3) Morton was chargeable with 

 knowledge of the general custom which 

 the jury found to exist. Under these 

 conditions Morton would have no right 

 of action against the defendant, and 

 therefore his undisclosed principal 

 would have no such right. These con- 

 clusions would, we think, follow if Mor- 

 ton acted as the agent of both parties, 

 because it would be his duty as agent 

 of the plaintiff to communicate to him 

 the knowledge with which he was 

 chargeable. 



(11) Considerable stress seems to be 

 laid by respondent on the fact that 

 prior to the purchase of the tobacco 

 seed the defendant had sent to Morton 

 a cabinet containing packages of gar- 

 den seeds for sale on consignment, and 

 that no disclaimer was printed on these 

 packages. If there Avas a general cus- 

 tum such as the jury found, it was im- 

 material whether there was a dis- 

 claimer on the packages or not, unless 

 the defendant knew that Morton was 

 ignorant of such custom, and there is 

 no claim that it had such knowledge. 

 Besides, if defendant saw fit to sell its 

 garden seeds with a warranty, that 

 would be no particular reason why it 

 should sell its field seeds in the same 

 way. The damages recoverable for 

 breach of warranty on the sale of 

 small packages of garden seeds would 

 ordinarily be inconsequential, while in 

 the case of field seeds the reverse would 

 be true. In the present case the pound 

 of tobacco seed was sold to Morton for 

 $2.25. The damages recovered were 

 .$1,015. It may seem unjust that the 

 purchaser should suffer this loss. But 

 it is apparent that, if a^ed houses war- 

 ' j^ ranted theil* seedi^ theji'^ould have to 

 ip sell At a':V#y mttch IM^r price thait 

 if no warranty were given. If the de- 

 fendant 'had sold 100 pounds of this 

 seed instead of one pound, it would 

 receive therefor $225, and on the basis 



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