46 
SEED TRADE BUYERS GUIDE 
under the Pure Seed Law and if the dis¬ 
claimer can be proved when used sepa¬ 
rately, we see no legal reason why it should 
not appear on the tag provided it is so used 
as not to obscure the statutory data. 
Disclaimer, on Retail Sales 
Question: If a retailer sells over the coun¬ 
ter seeds in packages bearing a wholesaler’s 
disclaimer is the retailer protected by such 
disclaimer t 
ANSWER: No. The retailer in such case 
would not be protected by the express dis¬ 
claimer although he might defend on proof 
of a general custom not to warrant. See 
Jolly vs. Blackwell, 211 Pac. 7 48. 
Authorities as to the liability of the 
producer to the ultimate consumer who pur¬ 
chased from a middleman are cited and 
discussed in 39 A. L. R. 1000 and in 17 
A. L. R. 672. The editor points out that an 
early case permitting the sub-purchaser to 
enforce warranties against the producer has 
been repudiated and that unless the facts 
involve a tort liability the sub-purchaser 
must look only to the retailer with whom 
he dealt. 
Disclaimer, Standard Wording 
Question: What is the official wording of 
the Seed Trade Disclaimer Clause f 
ANSWER : “The . Company gives 
no warranty, express or implied, as to de¬ 
scription, quality, productiveness, or any 
other matter of any seeds, bulbs, or plants 
it sells, and will not be responsible for the 
crop.” 
Disclaimer, Variations in Wording 
Question: We feel that the wording of the 
standard disclaimer is abrupt and harsh. 
We contemplate substituting a statement 
emphasizing the care that we take but 
pointing out that we have no control over 
conditions of cultivation. Would you approve 
of such changesf 
ANSWER : While we sympathize with your 
reluctance to employ wording which em¬ 
phasizes only the negative aspects of your 
engagement, we nevertheless advise sticking 
to the standard wording. There is danger 
that you might fail to cover the entire 
ground or that your new wording might in¬ 
volve ambiguities that would not occur to 
you. More important than this is the point 
that the use of uniform wording by the 
entire trade is an advantage, first, to the 
trade since each seedsman using the clause 
is strengthening the custom theory on which 
many cases are being favorably decided and, 
second, to the individual since it is to the 
interest of each seedsman to bring himself 
squarely within the protection of this uni¬ 
form custom. 
General Statement of Law 
Question: Where may I read a general in¬ 
troductory statement of law applicable to 
warranties of seeds t 
ANSWER: You will find such a statement 
in the introduction to the annotation to 
Johnson vs. Foley Company, in 16 A. L. R. 
859. We may summarize a part of that 
statement as follows. Most seed contracts 
are sufficiently descriptive to indicate that 
the subject of sale is to be used for plant¬ 
ing. This gives rise to an obligation which 
some courts call an “express warranty,” 
other an “implied warranty,” and still others 
a “condition”. Since this obligation of the 
seller survives acceptance at least as tc 
defects which inspection would not disclose, 
the distinction is often disregarded. The 
fact that the buyer cannot determine by 
inspection whether the articles tendered by 
the seller comply with the contract is the 
reason for the exceptional rule applied to 
sale of seeds that in absence of an express 
disclaimer a warranty will be implied. 
Growers Contract 
Question: Can you give us a good form for 
a contract between a seedsman and a 
growert 
ANSWER: The form used by the Ferry- 
Morse Seed Company has stood the test of 
successful litigation in Ferry vs. Forquer, 
202 Pac. 193, and Ferry vs. Smith, 209 Pac. 
1066. That form is as follows: 
Seed Co. 
P.0.State 
.19.. 
I.agree, on the terms and conditions 
stated below, to raise for you, on lands of suit tble 
quality and condition, located in Section.Town¬ 
ship of.County of.and State of 
.and to deliver to you at.,...the 
following seeds: .. 
I agree properly to prepare and plant such lands 
with Stock Seed to be furnished by you at 
.; properly to cultivate and care for 
the crop; to harvest, cure, separate and clean, as 
well as possible with ordinary farm machinery, its 
entire seed product, in such manner as to secure 
the greatest possible return of seeds suitable for 
Seedsman’s use; and to sack and deliver all the 
seed to you at.. as soon as the seed 
can be put in suitable condition, and before No¬ 
vember 30, 19__ without wasting, feeding, sell¬ 
ing, reserving or allowing any portion of the crop 
or seed furnished to pass from my possession ex¬ 
cept as delivered to you. You are to pay all freight 
charges on stock seed, crop and on any hags you 
send me. The stock seed and seed crop produced 
from it is, and shall remain your property except 
as otherwise stated in this contract. 
In order to prevent hybridization and to keep the 
crop pure, I agree that during the life of this con¬ 
tract I will not grow Seeds of the same species 
for any other person, and as far as I am able 
to prevent it, there shall be no other plants of 
the same species grown within ten rods of this 
crop. I will take at all times every reasonable pre¬ 
caution to keep the crop pure and to prevent seed 
of any chance plants of a different variety or of a 
stock of the same variety different from that sent 
me by you, becoming mixed with seeds grown un¬ 
der this agreement. You or your agents may at 
any time enter the field and, at your own expense, 
make such examination, selections or rejections as 
you or they deem desirable for the betterment of 
the crop for seed purposes, and you or they shall 
not be liable for necessary damage, if any, to my 
crop resulting from such work. 
You are carefully to weigh and test the crop 
upon its delivery. Any remilling is to be done 
by you at your expense. You may refuse to accept 
the crop if less than eighty-five peT cent (85 per 
cent) of the seeds are vital, or if in your judg¬ 
ment the crop is in any other respect unfit for 
Seedsman’s use and cannot be made fit without an 
unreasonable amount of cleaning or hand picking. 
In case of dispute as to vitality, it is agreed that 
a sample of the seeds may be submitted to the 
United States Department of Agriculture for test¬ 
ing, and the report of the Department of Agricul¬ 
ture on the sample submitted shall be final and 
binding on both of us. The sample shall be taken 
from the seeds as they stand in your warehouse, by 
drawing a sample from each sack, then thoroughly 
mixing the same, and taking a sample from the 
mixture, which shall be sent by the ordinary course 
of mail or otherwise to the Department of Agri 
culture at Washington, D. C. In case you refuse 
to accept the crop, its title shall vest in me and in 
such event or in case of loss of stock seed through 
crop failure or otherwise I agree to reimburse 
you immediately for stock seed and bags furnished, 
and for all freight charges paid by you on any re¬ 
jected crop. If, within 60 days after you mail me 
notice of refusal to accept the seeds, rou do not 
receive directions from me as to their disposition, 
you may dispose of them as you wish. 
In consideration of the faithful carrying out of 
this Agreement by me and as full oompensation 
for my services, you are to pay me at the rate of 
.per necessary weight to give 
100 pounds of hand-picked . 
for all seed in excess of the Stock Seed furnished 
me, delivered under this contract and accepted by 
you; payment to be made immediately upon your 
acceptance of the seed. No payment is to be made 
Reference Section Index—Page 4 
