44 
SEED TRADE BUYERS GUIDE 
SEEDSMEN’S LEGAL QUESTIONS ANSWERED 
During the past seventeen years Seed World has conducted a Legal Department, in which 
subscribers’ questions have been answered and current court decisions of interest to the 
seed trade have been discussed. Believing that the questions that have arisen most fre¬ 
quently in the past are likely to continue to be encountered by the seed trade we have had 
our attorney, Herbert Bebb, prepare the following selection and condensation from the 
Legal Department material. 
Catalog Delay 
Question: We figure that we have lost some 
sales due to failure of our printer to deliver 
our catalogs on the agreed date. Are we 
entitled to recover such lost profitst 
ANSWER: In Drumm Seed Co. vs. Mc¬ 
Farland, 30 S. W. 93, the Court held that 
before such lost profits can be allowed “the 
amount of loss thus sustained must be shown 
with reasonable accuracy and the instances 
in which it would be possible to make this 
proof must necessarily be exceptional.” In 
view of the difficulty in proving such dam¬ 
ages we advise the inclusion of a liquidated 
damages clause in important printing con¬ 
tracts. 
Commission Seeds 
Question: What protection does the whole¬ 
saler have against a bulk sale of commission 
seed stand and packets or against their being 
levied upon by a judgment credit of the re¬ 
tail dealer who has them on consignment t 
ANSWER: The consignee of a stand of 
commission seeds is legally a “Bailee”. In 
our opinion his authority to sell the packets 
separately at retail does not amount to a 
representation by the wholesaler that he 
has authority to sell or pledge the entire 
stand. See Romeo vs. Martucci, 72 Con. 504. 
Corporate License 
Question: In connection with our commis¬ 
sion seed business should our corporation be 
licensed to do business in those states in 
which we will place our stands or boxest 
ANSWER: By the weight of authority sales 
by a consignee of goods received from a 
consignor out of the state are regarded as 
Interstate Commerce and hence a corporate 
consignor need not be licensed to do business 
in the state in which the sales are made. 
See Butler Brothers vs. U. S. Rubber Com¬ 
pany, 156 Federal 1. 
Crop Failure 
Question: Does a crop failure excuse us 
from furnishing strawberry plants which we 
have contracted to furnish at this seasont 
ANSWER: No. If you unconditionally un¬ 
dertook to furnish a certain number of plants 
without stating where they were coming 
from or otherwise connecting your liability 
with the supply then you would remain liable 
despite the crop failure. 
Damages 
Question: What is the proper measure of 
damages for loss of crop because of faulty 
seedt 
ANSWER: Where a crop is produced upon 
which expected profits can be estimated the 
proper measure of damages is the differ¬ 
ence in value between the crop grown and 
the crop that would have been grown if the 
seed had been according to contract. If no 
crop is produced then the measure of dam¬ 
ages includes (1) the purchase price; (2) 
the rental value of the land; (3) the labor 
in preparing, sowing, cultivating; (4) haul¬ 
ing the seed from the place of purchase. 
See Lundquist vs. Jennison, 214 Pac. 67. 
Merchandise and Seedsmen’s 
Disclaimer, Custom 
Question: Where there is no non-warranty 
clause in the written contract, can the seeds¬ 
man defend on the theory that the parties 
must be understood to have dealt with ref¬ 
erence to the general non-wari’anty customt 
ANSWER: Yes. The tendency of recent 
decisions, particularly in the west, has been 
strongly in the direction of recognizing the 
non-warranty custom, thus in effect incorpo¬ 
rating the disclaimer clause into seed con¬ 
tracts. The most recent decision along this 
line was Hoover vs. Utah Nursery Company, 
7 Pac. (2nd) 270, in which earlier authori¬ 
ties are discussed, particularly the exhaus¬ 
tive opinion in Miller vs. Germain Seed & 
Plant Company, 193 Cal. 162. Other cases 
are cited in 37 LRANS 79; An. Cas. 1918 
B71; 16 ALR. 859, which will be found in 
any large law library. Most of the cases 
giving effect to the disclaimer custom have 
been from west of the Mississippi River 
but in 1931 New York was added to the list 
by an important decision in Lumbrazo vs. 
Woodruff, 256 N. Y. 92. Some of the refusals 
to give effect to the disclaimer custom may 
be attributed to failure of the seedsman and 
his attorneys to make sufficient proof as to 
the existence of the custom. Such a case will 
be found in National Seed Company vs. 
Leavell, 259 S. W. 1035. In American Ware¬ 
house Company vs. Ray (1912 Texas Civil 
Appeals), 150 S. W. 763, it was held that the 
disclaimer custom could have no effect unless 
it was to show that the plaintiff “had knowl¬ 
edge of such custom or contracted with it 
in view.” 
Disclaimer, Location 
Question: Where should the disclaimer be 
placedt 
ANSWER : We advise placing the disclaimer 
on your letterheads and on all forms on which 
contracts may be drawn in such a location 
that it will read as a part of the contract. 
Some cases hold that obscurely printed con¬ 
ditions above the salutation upon a letterhead 
will not be read into a contract written there¬ 
on. One such case is Sturtevant Co. vs. Fire¬ 
proof Co., 216 N. Y. 199. On the other hand, 
it was held in Poel vs. Brunswick Co., 216 
N. Y. 310, that such printed additions, if suffi¬ 
ciently prominent, will be taken as part of the 
contract. Rodesch vs. Kirkpatrick Coal Com¬ 
pany, 41 Fed. (2nd) 518, is a similar case. 
Placing the disclaimer on tags and in¬ 
voices is not alone enough since on most 
sales the contract has been closed before 
these papers come to the buyer’s attention. 
See Edgar vs. Breck, 172 Mass. 581, and 
Werd vs. Valker, 176 N. W. 129. 
Disclaimer, Relation to Pure Seed Law 
Question: Is it permissible to put the stand¬ 
ard disclaimer on the tag required by the 
uniform Pure Seed Lawt 
ANSWER: We understand that some state 
officials have taken the position that such 
use of the disclaimer is inconsistent with 
the spirit of the requirement that certain 
information be placed on the tag. In Man- 
gelsdorf Seed Company vs. Busby (1926 
Okla.), 247 Pac. 410, the Court held that 
the seed company “had a clear right to meet 
this issue of implied warranty by proof 
tendered of an express non-warranty.” 
Although the presence of the disclaimer on 
a tag was not involved, the case did arise 
Supplies Index—Pages 4 and 6 
