one at this annual meeting to make a brief statement regarding the disclaimer. Without knowing I was to say anything upon this subject, I partially covered that matter in the paper which I read to you yesterday. This disclaimer has been the subject of a great deal of discussion in conventions, and in 1900 and 1901 there was very great interest taken in the disclaimer, in the way of ascertaining whether we had at that time the strongest disclaimer possible. I think Mr. Johnson, of Philadelphia, was the chairman of the committee, and he reported certain changes which were adopted, and the disclaimer as reprinted then was mailed to all the members and taken up by the trade generally, and it was hoped everybody would use that disclaimer on all of their printed matter, and in every way so as to strengthen the position of every person selling seeds. I think that feeling holds strongly now. Without making any reference to the letters which have come to the committee, I would like to read a certain decision. This is a case which came before the court in Cleveland, Ohio. The Secretary has obtained a copy of the judge's ruling, which touches upon vital points of interest to all of us. (Mr. Willard here read the court's opinion, as of May. 1907.) STATE OF OHIO, CUYAHOGA COUNTY, SS S. H. Calhoon, Plaintiff, VS. William Brinker, Defendant. IN THE COURT OF COM- Court's Ruling on Defendant's Motion to Direct a Verdict for Defendant. Beacom, J. In February, 1903, plaintiff was a gardener in the vicinity of Cleveland and defendant was a seedsman doing business in the city. About that date plaintiff went to store of defendant and asked for four pounds of Mammoth Golden Yellow Bush Squash seed, and for two pounds of Long Island Beauty Nutmeg Melon seed. Defendant gave plaintiff four one pound packages of the first named seed with the name asked for printed upon the package and also gave two pounds of the last named seed with the name asked for printed upon the package. For purpose of brevity, I shall deal only with the squash seed, because whatever ruling the court makes as to the one must be made as to the other. When plaintiff asked for squash seed of the named variety, defendant said that he had it, that it had been raised for him, that it was what the plaintiff wanted. The seeds were delivered to plaintiff, and the appearance was the same as that of the seeds asked for. The plaintiff, a gardener of forty years' experience, could not perceive that they were not the seeds asked for. The seeds were planted and grew, but produced a different squash from that asked for and from that named upon the boxes in which the seeds were contained. Plaintiff seeks to recover from defendant the loss which he suffered by reason of the fact that the squash that grew was inferior to that of which he thought he was buying the seeds. These are the facts. There are two additional facts which will be stated later when I come to the law questions. I shall now consider the law applicable to these facts, and shall do so under three heads: 1. First, the general proposition, does a seedsman who gives a package marked with the name of the variety asked for, warrant that from these seeds there will grow, if they grow at all, that variety? It seems to me that the law may be different in the case of a seedsman in a large city selling and delivering seeds from what it is where the seeds are bought from a farmer or a gardener who sells what he has grown. Without evidence on the subject, a court must not be blind to the ordinary facts of life, and the facts about the business of a seedsman in a large city are, that he handles chiefly goods which he gets from others, some of them from foreign countries. The evidence in this case is explicit that the defendant did not himself produce these seeds. He said to plaintiff "they were raised for me." In other words, "I did not produce them, I got them from the producer;" and while it is not of much or any importance in this case, it might in some cases be important to determine whether the seeds were sold by a person in commercial business of selling seeds or by a gardener or a farmer selling that which he himself produced. The rule manifestly must be different, if one go to a farmer and ask him for certain seeds, the natural inference, the one which the producer has a right to draw, is that the seeds furnished are those which the farmer himself has taken from the squash, and the case would be very different from that of a man who gets his material, perhaps in carload lots from foreign states and foreign countries. Passing from the character of defendant's business and the manner in which he handles seeds, we come to the subject of the seeds themselves. This is the determining thing in this case. And here we must recognize the facts of vegetable life, even without any evidence. We all know that no human being can take those seeds that were sold and tell what variety of the species they belong to until the fruit is ripened. We know that farmers in the spring time, in order to know whether or not seed will grow, put some of it in water to see whether or not it will germinate or sprout, as they call it. That is the sort of subject matter that is being dealt with here. It is something of which the life and character is hidden and in mystery. No amount of diligence on the part of any of us would enable us to take these seeds as they were brought into the court room yesterday and tell what they would produce. In this case a special variety of squash seed was asked for. We all know that varieties are not permanently fixed qualities; that under different conditions of soil and climate they quickly change if not carefully protected against that. We know, for instance that if a seed is planted in one lot and in a near by lot there be a different variety of the same species, the insects will fly from one to the other and carry the pollen from one to the other; and while one variety is planted a different variety is produced. Take the ordinary sweetcorn that is used for the table and plant it near a field of common yellow corn and the first season the sweet-corn will deteriorate by the transmission of the pollen by insects or by the wind, from the other field. Considering the nature of this man's business, considering the nature of the subject matter with which he was dealing, it seems clear that if all that had been done were what I have thus far numerated, this court is of the opinion there would be no warranty that the product would be Mammoth Golden Yellow Bush Squash. The court is also of the opinion that the conversation related in the store there does not alter the rights of the parties. What is related to have been said by defendant would amount only to the printing on the box; a certain variety was asked for, and he said in substance, "I have it." that is substantially all there was of it, and so I think the parties stand in this case in the position of any seedsman, who, when a certain variety of seed is asked for, hands it out with the name printed upon the package, and I am of the opinion that a seedsman so doing does not warrant those seeds. To hold that he does would be to make his business a most perilous one. If a seedsman were held under these conditions to warrant that when a person asks him for Mammoth Golden Yellow Bush Squash that is what will be produced when the harvest comes, then this business is one of excessive risks. No one would undertake the perils of a business of that kind if that were the rule. 2. I have thus far stated this case most favorably to plaintiff. The words "Mammoth Golden Yellow Squash" were not the only words upon the boxes containing these seeds. There was also this printed matter; "We use all possible care and precaution to have our seed pure and reliable, but we do not in any case warrant or guarantee them. If the purchaser does not accept them on these conditions they must be returned at once." I am of the opinion that there was a contract in writing between these parties. The whole terms of this transaction were set out there. The dealer did not simply say "Here is Mammoth Golden Yellow Bush Squash seed." The plaintiff can not pick out the words of that printed matter that are favorable to himself, but must accept them all. If the evidence sought to be introduced were that the defendant expressly said in words at that time, "I warrant that these seeds are such as they are marked," this ought to be excluded from the evidence. There is a contract in writing between these parties. It can not be added to or contradicted by oral evidence. Therefore in this view of the case, the court would grant the motion to direct a verdict for defendant. 3. In the third place, it appears that plaintiff and his son went to defendant's store with a list of seeds which the son obtained from the defendant's catalogue of seeds. On page 2 of defendant's catalogue, near the top thereof, is some printed matter in large type and in heavy faced letters. The plaintiff says he does not remember whether or not he ever read it; but it is admitted that on the former trial of this case he said he probably had read it. I think the only proper finding from that state of evidence is that he did read it, and it reads thus: "Warranty: We warrant that all seeds sold by us shall prove to be as represented to this extent, that should they prove otherwise we will replace them or send other seeds of the same value." These seeds were bought under a contract of which this is a part, the parties thereby in that contract liquidated their damages. They stipulated that if the seeds were not as represented the defendant would return what had been paid for them; that is the substance of it. The undisputed evidence is that nothing has ever been paid for them and therefore the parties having made a contract liquidating their damages at the price of the seeds and the seeds never having been paid for, the damage in this case is nothing. To re-state in the inverse order; In the first place this contract in the catalogue stipulated what the damage of the plaintiff shall be, and it stipulates the damages to be the value of the seeds, and the seeds not having been paid for, the damage is nothing. In the second place, the entire printed matter on this package constitutes a written contract between the parties and by that contract the plaintiff was expressly, clearly told that there was no warranty of these seeds. In the third place and as a general rule of law, if a person goes into a seed store and asks for a variety of a species of seeds and they are given to him without comment, the name printed on the package in which they are contained, there is no warranty whatever. I take it the rule is that this defendant, like every other person who deals with his fellows, must exercise ordinary care to see that that which he ostensibly sells is that thing. There is no evidence in this case that the defendant failed to exercise ordinary care. Therefore, gentlemen of the jury, all questions of fact are for you and all questions of law are for the court, and whether or not there is any evidence is a question of law and not a question of fact. The court directs you to bring in a verdict for defendant. Plaintiff excepts. C. A. Neff, Atty. for Plff. C. A. Neff, Atty. for Plff. M. B. Excell, Atty. for Deft. m Mr. Johnson moved that copies of the disclaimer be printed and mailed to the present members of the association, Which was seconded, And agreed to. (There was considerable discussion anent the report made by Mr. Willard on the disclaimer, which, on motion, was expunged from the records.) Mr. Bolgiano, R.: I move, not because we are personally involved but for the future, that there be set aside a sinking fund, that the seedsmen all over the United States, who are members of this association, can to a certain extent draw upon, as this association sees fit, when attacked unwarrantedly as they frequently are, Which was seconded. Mr. Emerson: I want the amount fixed. Mr. Bolgiano, R.: Fifty per cent. of the actual cost in carrying the case to a finish. President Wood: I think this is a very important matter and I am inclined to think it would be better to refer it to a special committee for report. I think it is too important a matter for us to decide off-hand at this meeting. I am simply stating this as the opinion of the chair in regard to it. Mr. Green: It would seem to me each case ought to stand or fall on its own merits to a certain extent, and that the association should not be obliged to fight all cases. Mr. Wood: (Ky.) A jury is usually made up of miscellaneous people, farmers, tradespeople, mechanics, some merchants, and in a case where a corporation is on one side and private interests on the other, the tendency seems to be to side with the weaker against the corporation. I move as a substitute, that the Secretary of the American Seed Trade Association compile all the data that can be obtained on the subject of suits, that come from questions just at this time, and that these questions be kept on file to be referred to or cited whenever requested by any member of this association. I think this information can be gathered without necessarily increasing the expenses of the association and it can be kept on file and will be of more weight in fighting these. cases than if the American Seed Trade Association attempts to back any private interests. Mr. Willard: I have a great deal of sympathy for Mr. Bolgiano, and I think that they and every one else should have the moral support and backing of the association. But there is one serious difficulty that comes right before us when we consider such a motion as Mr. Bolgiano has made, and that is the fact that we have before us now at least five or six cases, and how could any committee decide which one to help, and it would be impossible so far as funds go to assist them all. I really do not see how we can get at it. I do favor Mr. Wood's substitute, and I would be glad to support the original motion if I saw any possible way to do it. Mr. Parmalee: What we are seeking is to get some decision from a higher court. We have a decision here from a lower court, and I want to ask if there is not some way for this association to take that case and bring it before some higher judge for decision. Then we would have a decision from a higher standpoint which would help any who are in difficulty hereafter. President Wood: The question is on Mr. Wood's substitute. Secretary Kendel: I want to say I think that is a good thing, because three times this year I have been asked for information on that very subject, and had I had it it would have settled one suit in court now. In one of the letters the attorney for the plaintiff said if he could find any |