'•(•■■"*..■>■ ■ cy^ 



42 



The Weekly Florists^ Review. 



Septbmbeb 7, 1911. 



The court reviewed the Summers 

 case, explaining the difference in facts 

 of the two cases. "It is also suggested 

 that there would be no dispute if in 

 the typewritten part of the letter a di- 

 rect reference to the printed clause was 

 made;" and the court gives this dic- 

 tum: 



"We are inclined to the opinion that 

 without some such reference a printed 

 condition should not be considered a 

 part of the written contract where an 

 absolute order is given in writing and 

 accepted by the other party." 



We have also considered other Illinois 

 cases and there appears no divergence 

 from the law as above stated: Ameri- 

 can Express Co. vs. Pinckney, 24 111. 

 392; People vs. Dulaney, 96 111. 503; 

 Michaelis vs. Wolf, 136 111. 68; Peek vs. 

 Scoville, 43 111. App. 362; Langdale vs. 

 Illinois, 100 111. 263; Loveless vs. 

 Thomas, 152 111. 479, 482; Chicago vs. 

 Weir, 165 111. 582; Bennett vs. Giles, 

 111 HI. App. 428. 



Therefore, answering the query above 

 propounded, so far as the decisions of 

 Illinois are concerned, we are of tlie 

 opinion that the seedsman can print 

 his disclaimer clause at the top, or at 

 the bottom, or on the reverse side of 

 the letter sheet, upon which he is mak- 

 ing his contract of sale, and have same 

 an effective condition of his contract, 

 PROVIDED in the written part of his let- 

 ter direct reference to such clause as a 

 part of the contract is made, as, for 

 example, "Subject to the above (or be- 

 low, etc.) printed conditions we offer 

 (or accept), etc." 



We suggest that this method of plac- 

 ing the disclaimer clause at the top or 

 bottom of the letter sheet, with direct 

 reference thereto in the body of the 

 typewritten letter, has an advantage 

 over printing the clause between the 

 date line and signature, inasmuch as 

 not all correspondence of seedsmen 

 constitutes offers or acceptance of prices 

 or terms of sales, and the direct ref- 

 erence above advised distinctly comes 

 within the ruling of the Anaconda 

 case, above cited, and many other de- 

 cisions, and will avoid the possibly un- 

 favorable judicial determination that 

 the printed clause is antagonistic to 

 the written terms and so void. 



And as to the law in states other 

 than Illinois, our investigations indi- 

 cate that most courts sustain, while 

 some courts do not establish the Illi- 

 nois doctrine of exclusion of printed 

 clauses outside of the date line and 

 signature, unless referred to in the 

 body of the letter, on the well known 

 theory that a document must be read 

 by its "four" or "eight corners." 

 Yet we maintain our opinion above 

 expressed and for these reasons: 



PRIMUyi^ 



UnrlTaled for size of flower, purity of color anfl 

 biffnefltaevelopment. They represent tbabaat 

 ■pedalists have so far produced . Seeds and plants 



J. L. SCHILLER, Toledo, O. 



IfentlOD The Review when von write 



0. V. ZARGEN, Seedsman 



HOBOBXN, N. J. 



Grower. Importer of High Grade 



Stedsf Bulbs and Plants 



Aak for eatalofne or special qaotatlODs. 



F. J. GROOTENDORST S SONS 



Complete line of 

 hlsh £rade 



BOSKOOP, HOLLAND 



Ornamental Trees, Shrubs, Evergreens and Bulbs 



Specialties: Acer, Aesculus, Ampelopsia, Arislolochia, Asalea, Buxus, Clematis, 



Dielytra, Funkia, Hydrangea, Kalmia, Magnolia, Paeonia, Phlox, Rhododendron, 



Rosee, Standard Roses, Conifers, Tulips, Hyacinths, Narcissus, Crocus, Palms, Bay 



Trees. Catalogue on appUcation. 



Mention The Review when you write. 



AUGUST ROLKER & SONS 



Importers of Azaleas, Rhododendrons, 

 Palms, Araucarlas, Bays, Box, Roses, 

 Camellias, florists' Bulbs, narserymen's 

 Trees and Shrubs, etc. For lists, address 



P. 0. Box 752, or 31 Barday SL. NEW YORK 



Mention The Review when yog write. 



First. The courts might decide, un- 

 der the facts of the particular case 

 (as in the Summers case), that the 

 printed disclaimer clause was not con- 

 templated by the parties as a condi- 

 tion of the contract. 



Second. Even if the courts held 

 that the printed clause was a condition 

 of the contract, yet it may be decided 

 that the printed clause was antagonis- 

 tic to the written terms and so void 

 under a well established rule of law, 

 because the written words propose to 

 sell certain seeds carrying an implied 

 warranty as true to type, etc., while 

 the printed clause expressly robs the 

 written words of any such force. Of 

 course, all this is obviated by the di- 

 rect reference in the written agree- 

 ment to the printed clause. 



Mention The Review when you write. 



Therefore we conclude by suggest- 

 ing that the use of the disclaimer 

 clause as above advised provides great- 

 er security to the seedsman and it cer- 

 tainly seems more frank and better 

 business for the seedsman to state his 

 conditions in the direct, unambiguous 

 and not at all difficult manner sug- 

 gested. EespectfuUy submitted, 



Curtis Nye Smith, 

 Kirby B. White, 

 Simeon F. Leonard. 

 By C. E. Kendel, Sec'y 



American Seed Trade Association. 



BABTELDES HAS BAD FIBE. 



One of the most spectacular fires 

 which have occurred in Denver in a 



C3LLAS 



With sound center shoots and free from rot. 



1 ^ to 2 inches diameter, - $7.00 per 100; $65.00 per 1000 



A. HENDERSON & CO., 



30 E. Randiipk St., 

 CHICAGO 



PHON£ RANDOLPH 8571. 



Mention The Review when you write. 



ORDER NOW 



Ayres' Superior 

 ^ Christirias. 

 Sweet Pea Seed 



CbriRtmas Pink. Christmas White. Christmas 

 Blue. Watcbung. Christmas Primrose, lb.. tl.5U; 

 H lb., 50c; 6&,20c. 



Mrs. Alex Wallace Oavender). Ayres' Thanks- 

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Write for catalofue of many other varieties. 



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GIANT 



PANSY m 



The KENiLWORTH Strain 



light, medium or dark mixture, 20(X) seeds. 60c; 

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 Panslea In Separate Colors. 



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Mention The Review when you wrtte. 



