80 



The Weekly Florists' Review. 



NOVBMBBB 16, 1911. 



agreed to furnish 1,000 bushels of Ad- 

 vancer peas. Such peas were to be 

 grown during the season of 1908, to be 

 delivered after harvest, but in season 

 for the planting trade for the year 1909. 

 A quantity of peas was delivered under 

 this contract to the defendant, it giving 

 its promissory notes in payment there- 

 for according to the terms of the con- 

 tract. The peas so sold were in turn 

 sold by the defendant to various farm- 

 ers for the purpose of planting^ and un- 

 der contracts by virtue of which the 

 farmers agreed to sell the peas raised 

 from such seed to the defendant. The 

 plaintiff brought action upon the notes. 

 The defendant, among other things, in- 

 terposed a counterclaim setting forth 

 that the peas furnished were not Ad- 

 vancer peas; that they were received 

 by the defendant without knowledge of 

 that fact; that there was no means of 

 discovering that they were not Ad- 

 vancer peas until after they had been 

 sowed and the seed had germinated, 

 and that as soon as the defendant dis- 

 covered that the peas were not of the 

 variety purchased it notified plaintiff. 

 The counterclaim further set forth that 

 the peas were mixed with other diflPer- 

 ent varieties, making it impossible to 

 harvest them without a mixture of over- 

 ripe peas of varieties other than Ad- 

 vancer. Facts are pleaded tending to 

 show damage, and judgment is asked 

 for the amount thereof. On the trial 

 the court allowed the defendant to 

 amend its answer by setting up a new 

 counterclaim for the purchase price of 

 the peas. The trial court held that the 

 peas were sold without warranty as to 

 quality or description, and directed a 

 verdict for the plaintiff for the amount 

 claimed, less $343.75. The peas were 

 shipped from Chicago and invoiced on 

 the basis of fifty-six pounds to the 

 bushel. The court held that the de- 

 fendant was entitled to receive sixty 

 pounds per bushel, and hence made the 

 foregoing reduction. From a judgment 

 in plaintiff's favor defendant appeals. 

 The contract for the sale of the peas 

 contained the following provision: 



"It is also understood and agreed 

 that the party of the first part (plain- 

 tiff) does not give, and its agents and 

 employees are forbidden to give, any 

 warranty, express or implied, as to de- 

 scription, quality, productiveness, or 

 any other matter, of any seeds, de- 

 livered or to be delivered by it, and 

 that it is not, and will not be in any 

 way responsible for the crops." 



Counsel for the appellant admit 

 ' ' that plaintiff is freed by the terms of 

 this contract from all liability as to the 

 seed in question being good or bad, 

 large or small, wrinkled or smooth, 

 black or white, wormy, sound, vital or 

 dead. ' ' But counsel argue that the 

 peas furnished under the contract must 

 be of the Advancer variety and that 

 plaintiff was not relieved by its con- 

 tract from liability for damage result- 

 ing from furnishing peas other than 

 Advancer psas. It was practically con- 

 ceded on the argumpjit that th^ clause 

 qtrof^a was intended to exefllpt the 

 plamtiff" from such liability as was 

 soilght-to be e^lorc^d against it under 

 tfce'^Wunterclaihi in<4his i«fdn. Th* 

 concession was advisedly made. The peas 

 to be delivered under the contract were 

 described therein as Advancer peas. But 

 the contract provided that no warranty 

 express or implied was given that^-roe 

 peas furnished should be of the descrip- 

 tion named therein. If a dealer in ^eed 



THX TRAD] 



HENRY METTE, Qnedlmbm^, Gennany 



^■^^^^^^^^^" (Eotablished in 1787) 



Gro^rer and Kzporter on the very lararest soale of all 



CHOICE VEGETABLE, FLOWER and FARM SEEDS 



Speolalttest Beans, Beete, Cabbages. Carrots, Kobl-RabI, Leeks. Lettnces. OiiloDS« 

 Peas, Radislies, Spinach. Turnips, Swedes, Asters, Balsams, Begonias. Carnations, 

 Cinerarias, Qluziuias, Larkspurs. Nasturtiums, Pansles, h'etunias. Phlox. Primulas. Scabioui, 

 Sto cks, Verb enas. Zi nnlaa. etc. Catalog ue free on applicatio n. 



HKNRT MSmB'g T IUUMPH 0# THK GIANT PANSIS8 (mixed), the most pev- 

 feet and most beaotUol in the world. 16.00 per oz. : 11.50 per ^ oz. : 75o per 1-16 oz Poetags 

 I>aid. Cash with order. 



All seeds oflered are grown under my personal supervision on my own vast sroonds, ' 

 and are warranted true to name, of strongest growth, finest stocks and best quality. I also 

 grow^ largely —da on contract. 



Mention The Eeview when you wtlteo 



-PKRFKCT PLANT POODB- 



THONSOirS 



Vue Hut ud 



Ve^eUUe 



MANURE 



Wnie Thomson & Sons, Ltd., 



UnrlTaled for rlnea, tomatoea. cucnmbera, all flowering, foliage 



and (mit bearing planto; regetables, lawns, etc. Hat etood the 



test of 30 rears. The resalt of many years of practical experience. 



Sold by Leading American SeedBm<«n. 



Also ThemsoH's Special Chrysantbeinnni and Topdiesslag 

 Manare. Ah Excellent Stlmnlant. 



Freight paid on qnantitiee; liberal terms to retailers. Write 

 for onr special offer to the American trade, agents' circulars, 

 pamphlets, etc.. to sole makers. 



Exporters of PuFC Scotch SoOt prices. ^. 



Tweed Vineyards, 

 CloTenfords, Scotland 



Mention The Review when you write 



Seedsmen requiring the rery best selections of 



Garden Seeds 



( Vegetable and Flower ), especially 



Kelway*s Celebrated 

 English Strains 



can get them at lowest independent wtiolesale 

 rates by sending their orders direct to 



KELWAY & SON 



Wholesale Seed Growers 

 Langport, Somerset, England 



Special quotations on application. 

 Mention The Review when vou write. 



roR 



SEEDS 



of an kinds apply to 

 W. W. JOHNSON & SON, Ltd. 



BOSTON. XNOLAND 



Mention Tbe Review when you wrlta 



peas can exempt itself from liability 

 for selling bad, wormy or dead peas to 

 a grower, no good reason is apparent 

 why it cannot go further and say that 

 it will not be responsible in the event 

 of an intermixture of other peas with 

 the variety, agreed to be furnisfefetd. 

 Neither of the parties here are under 

 guardianship or incompetent to- (•on 

 tract." There is no claim that th« von- 

 tsact signed was not tbe eae-Apreed upon 

 or that both parties did n©t ^Hy under- 

 stand what they were agreeing to. 

 Plaintiff plainly undertook to relievo it- 

 self from liability in case of intermix- 

 ture, and defendant agreed that it 

 should be relieved. It is not claimed 

 that the contract is void because con- 

 trary to public law or to public policy. 



TEICHER'S 



BEW iBORCING STOCKS 



See Page IS, 

 October 5 Issae of The Revlew 



Telober's Sno^^flalcei snow-white, wall- 

 flower-leaved. 



Rose Telslier, delicate light rose. 



Kate Telober, porcelain-blue. 



Ruby, flery red. 



Mrs. Mary Telotaer, soft, delicate, lalmon- 

 colored. 



Sapphire, deep sapphirine blue. 



Teloher's Olant-ncwerins Mammoth. 



Column Ten-veeek Stocks, pure white. 



Kmpress AuKusta Victoria, silvery, del- 

 icate ligbt lilac. 



Pkt.,50c; 10 pUs.,$4.50; 100 pkts., $35.00 



PAUL TEICHER l^^'S.^ 



Oricinator of all FORCING STOCKS 



Mention The Review when you write. 



CYNOSDRUS CRISTATUS 



(Crested DoKstaU) 



Purity and germination 

 / guaranteed. 



WM. POWER A CO. 



Seed Exporters 

 Waterford, Ireland. 



OabIe8'''8eedmerchaDt8" Code A.B.C. Sth Edition 



Mention Tbe Review when yon write. 



» t » 



J, HASSLACti 



SEKD GROWER 



St. Remy de Provence. 

 France 



h'^B issued his Seed Cata- 

 lojruo for Specialties in 

 flrst-class Flower and 

 Garden Seeds. 



__._ Li^ki:..- -V2Ci~a^3S. _:i^...-.s^'J...,v.^L-"«:; 



L.i^--r.te^fa^'V^>J 



