ordering the goods. This is the most favorable view for the plaintiff that the evidence will warrant.

It is apparent that the material question in the case is whether the tobacco seed was sold to Morton with or without a warranty that it was true to description. Defendant knew nothing of the plaintiff in the transaction. Plaintiff's rights against the defendant are no greater than Morton's would be if he had been the real instead of the ostensible principal. This is frankly conceded by respondent in the brief filed, and advisedly so.

Leaving any question of custom out of consideration, where a certain variety of seed is called for, and seed is furnished in response to such call, there is a warranty that it is true to description, unless the seller advises the purchaser that the sale is made without warranty. * * * Were the goods so sold to Morton? He had the defendant's catalogue before him when he placed the order and ordered from it. He so testifies. The defendant knew that he ordered from the catalogue, because one of the two items called for was ordered by the catalogue number. Between the cover and the first page of the catalogue there was a blank order sheet for customers to detach and use in ordering seeds. Immediately above the blank spaces in which the order was to be written was a printed statement to the effect that defendant gave "no warranty, express or implied, as to description, quality, productiveness, or any other matter of any seeds * * * they send out, and will not be in any way responsible for the crop."

On the first page of the catalogue proper there was printed in large type the words "General Suggestions to Customers." There were a dozen such suggestions made; the first word or words in each instance, indicating the nature of the suggestion, being printed in large, heavy type. One of these headings consisted of the word "Disclaimer" so printed, and immediately following it was a statement substantially like the one quoted above.

The two packages ordered from the defendant were wrapped in one bundle, and shipped by express. One side of the shipping tag contained the name and address of the consignee. On the reverse side there was printed in red ink and in conspicuous type the following words, which were underscored as indicated: "Northrup, King & Co. do not give, and their agents are forbidden to give, any warranty, express or implied, as to description, quality, productiveness, or any other matter of any seeds, bulbs, or plants they send out, and will not be in any way responsible for the crop. If the purchaser does not accept the goods on these terms, they are at once to be returned, and money paid for same will be promptly refunded." * * * Morton testified that he did not read or pay any attention to any of these nonwarranty provisions. If Morton had observed the conditions printed on the invoice, it would certainly have been his duty to inform his principal of them.

The defendant having the right to sell without warranty, it seems clear that it did all that could in reason be required of it to advise the purchaser of the condition upon which the seed was sold. Of course it is easy to imagine other things which it might have done which would be better calculated to give notice; but, if those things had been done, and had proved inefficacious, still other things might be suggested which would surely acquaint Morton with the conditions of sale. The business was transacted by mail. Where the book from

which the order was given, the shipping tag, and the invoice, all stated these conditions, it would seem to be unreasonable to hold that any blame attached to the defendant, if Morton failed to observe all of these things. The evidence is quite convincing to show that there was a disclaimer of warranty printed on the bag containing the tobacco seed also; but there was a sufficient conflict in the evidence on this point to make the question one for the jury, and it found that there

was none.

* *

Mr. Morton could not close his eyes to the information that was literally staring him in the face, and then hold the defendant liable because he did so. In matters of contract one must observe what he has reasonable means of knowing. The law for the protection of persons even against fraud will not be extended to those who, "having the means in their own hands, neglect to protect themselves. The law requires men, in their dealings with each other, to exercise proper vigilance, and apply their attention to those particulars which may be supposed to be within reach of their observation and judgment, and not close their eyes to the means of information which are accessible to them." * * *

In the absence of fraud, "a man cannot relieve himself from the obligation of a written agreement by saying he did not read it when he signed it, or did not know what it contained." Deering v. Họeft, 111 Wis. 339, 87 N. W. 298. * * *

The presumption arises from the delivery and acceptance of a bill of lading that the party receiving it assented to its terms. Ignorance of its contents "arising from failure to read it, or to make some reasonable effort to obtain information in that regard, in the absence of any evidence of fraud, *** or of the use of any means to deter the shipper from fully understanding the contract, is not sufficient to overcome it.

* * *

There is still another insurmountable difficulty in the way of plaintiff's recovery. The jury found that at the time of the sale there was "a general custom in the Northwest, including Wisconsin, among seedsmen such as the defendants, to refuse to warrant seeds." The jury also found that the plaintiff did not know of such custom. The jury made no such finding in reference to Morton. There is no evidence to show whether he knew of such custom or not. He did testify that he had no notice from any source that the defendant would not sell its seeds with a warranty. This might all be true, and still the general custom such as the jury found might not only exist, but Morton might have knowledge of it. It is probable that, had he been asked the direct question, he would have denied all knowledge of the custom, and we will assume that on the evidence referred to the court might have found lack of knowledge, and that it actually did so find.

It is not the law that ignorance of a general trade custom relieves a party from the effect of it. If there was a general custom among seedsmen such as was found, Morton, as a retail dealer in seeds, was bound to know of it. "The object of proving a general custom is not to contradict or change a contract made between the parties, but to interpret it to the court and jury as it was understood by the parties at the time it was made; and this evidence of a general custom, when it does. not contradict or change the express terms of the written contract, is admitted for the purpose of showing what the real contract between the parties was.

*

And, when it is clearly proven, the parties

are supposed to have contracted with reference to such custom, unless such custom changes the express terms of the written contract." * * * "A uniform trade custom is readily accepted by courts to define what is ambiguous or is left indeterminate in a contract, where both parties have knowledge of the custom, or are so situated that such knowledge may be presumed, for the reason that the majority of such transactions are had in view of the custom, and the agreement on which the minds of the parties actually met will thereby be carried into effect. Where the custom is proved to be known to both, it may even add terms to the contract. * * Where the custom is general, it will be presumed to have entered into the contract, and one may be bound thereby, although ignorant, unless the other party be shown to have knowledge of his ignorance."

* * *

Replying to the argument of counsel in another case, that a custom in order to be binding must be known to both parties to the contract, or it must have existed a sufficient length of time to raise a presumption of knowledge, the court said: "That rule, of course, prevails in case of an attempt to annex to a contract some incident not expressed therein, as in the case of Hewitt v. John Week Lumber Co., 77 Wis. 548 [46 N. W. 822], where the question was whether the owner of a sawmill, under his contract to saw logs by the thousand, was entitled to the slabs. There is a difference between evidence of usage to establish a custom for the purpose of annexing that as an incident to a contract and the same kind of proof to show the meaning of some word or term used in a contract. In the latter situation the meaning of the term as understood at the time and place of the contract governs, whether both of the parties knew of such meaning or not. They are presumed to contract with reference to the meaning of words and terms used by them, as such words and terms are understood at the place of their contract." Shores Lumber Co. v. Stitt et al., 102 Wis. 450, 455, 78 N. W. 562, 564.

The case at bar is in its facts very much like one recently decided by the Supreme Court of Iowa, from which we quote the following: “The alleged liability of the Younkerman Seed Company may be considered first. The evidence that a general custom, such as pleaded, prevails in the seed trade was conclusive. The particular package had the printed matter thereon, and, though this may not have been noticed, the sale is presumed to have been negotiated with reference to the general custom of the trade. This being so, a warranty that the seed was true to name could not be inferred, and the court rightly found in favor of the Younkerman Seed Company." Blizzard Brothers v. Growers' Canning Co., 152 Iowa, 257, 259, 132 N. W. 66, 67. *

* * *

Speaking of a general custom pertaining to the manner in which mines were operated, the Iowa court in another case said: "Again, it is said there is no showing that defendant had notice or knowledge of the custom. This is not necessary. The custom or usage being shown by competent evidence, the defendant is presumed to have had knowledge thereof. This is fundamental." Thayer v. Smoky Hollow Coal Co., 121 Iowa, 121, 127, 96 N. W. 718, 719.

The rules of law applicable to a general custom should not be confounded with those applicable to a local custom. * * * It is argued that the evidence was not sufficient to warrant the finding of a general custom. We think it was.

The conclusions which follow from the foregoing discussion may be summarized as follows: (1) The defendant offered the tobacco seed in question for sale without a warranty, as it had the right to do, and adopted reasonable and adequate means of advising the purchaser Morton that the seed was so offered, and in so doing performed its full duty to the purchaser, there being no evidence of fraud or bad faith; (2) Morton was chargeable with knowledge of the condition upon which the sale was made; and (3) Morton was chargeable with knowledge of the general custom which the jury found to exist. Under these conditions Morton would have no right of action against the defendant, and therefore his undisclosed principal would have no such right. These conclusions would, we think, follow if Morton acted as the agent of both parties, because it would be his duty as agent of the plaintiff to communicate to him the knowledge with which he was chargeable.

* * *

In the present case the pound of tobacco seed was sold to Morton for $2.25. The damages recovered were $1,015. It may seem unjust that the purchaser should suffer this loss. But it is apparent that, if seedhouses warranted their seeds, they would have to sell at a very much higher price than if no warranty were given. If the defendant' had sold 100 pounds of this seed instead of one pound, it would receive therefor $225, and on the basis of plaintiff's recovery would be liable for over $100,000 damages. It purchased the seed in Virginia, and admittedly ordered the variety which the plaintiff desired. The evidence shows that there was no way in which the substitution could be discovered until the tobacco plants were pretty well grown. Large seedhouses who draw their supply of seeds from different parts of this and perhaps other countries cannot well grow all the seeds which they handle. They are liable to be imposed on, and must either adopt the practice of selling without warranty or of selling with one, and imposing on the consumer an added price sufficient to make good the losses sustained by reason of the failure of the seed sold to comply with the warranty. * * *

Judgment reversed, and cause remanded, with directions to dismiss the complaint.

Sales Act, Section 15. (6) An express warranty or condition does not negative a warranty or condition implied under this act unless inconsistent therewith.

SECTION 11.-RIGHTS OF SUB-VENDEES AGAINST FORMER WARRANTORS

WELSHAUSEN v. CHARLES PARKER CO.

(Supreme Court of Errors of Connecticut, 1910. 83 Conn. 231, 76 Atl. 271.) Action by William Welshausen against the Charles Parker Company. From a judgment refusing to vacate a judgment of nonsuit, plaintiff appeals.

THAYER, J. The complaint alleges that the plaintiff purchased of the defendants a gun of their own manufacture with an express war

ranty by their agent that the same was sound, of best quality, and fit to stand the strain of proper and ordinary use, and that the barrels thereof were of the best Damascus steel. It also alleges negligence on the part of the defendants in manufacturing the gun and putting it on the market and allowing it to go into the hands of customers without proper supervision and inspection in the manufacture of the same and during and after its manufacture before it was sold, and that the gun was weak, insufficient, badly constructed, and of poor quality of steel, and that because of such defect the left barrel burst when the plaintiff was using it in the ordinary manner and with due care, and injured him. In compliance with an order of the court, the complaint was so amended as to show wherein the gun was defective, weak, and badly constructed. There is no allegation expressly stating a breach of the warranty. Upon the motion to set aside the nonsuit the plaintiff claimed that there was evidence from which the jury could find the express warranty or an implied warranty that the gun was fit for the purposes for which it was sold, and the breach of such warranty, also that there was sufficient evidence that the gun was defective in the respects alleged, and the defendants' negligence in putting it upon the market in that condition to warrant a verdict upon that ground.

To sustain a finding that there was a breach of warranty express or implied, there must have been evidence of a contract between the parties, for without a contract there could be no warranty. There was no evidence which would justify the jury in finding any contract between the parties. The evidence did not show that the plaintiff purchased the gun from the defendants. On the contrary, it showed that they sold the gun to the Simmons Hardware Company, by whom it was sold to one Koenig, who sold it to the plaintiff. The evidence of this was so clear that, had the jury found that the sale was made by the defendants to the plaintiff, the finding must have been set aside. The warranty, if one was given, was to the hardware company, and not to the plaintiff. And he, as subvendee, has no cause of action upon the warranty.

Upon the other branch of the case, there was no evidence to justify the jury in finding that the gun was defective in the respects set forth in the amended complaint. The gun was in evidence, and there was some evidence that the cartridges fitted the left barrel somewhat loosely. But the jury would not be permitted from these facts alone to conjecture that the gun was defective or unsafe. Those facts laid the foundation for the introduction of further evidence by experts to show that the thickness of the barrels as shown by the exhibit was insufficient for safety, or that the quality of the steel was poor, or that the barrels were improperly and irregularly bored, and that the looseness of the fit of the cartridge was liable to cause a disruptive explosion. If such were the fact, it was easy to produce witnesses having knowledge derived from experience and study to testify to it. The jury could not properly be allowed to guess or surmise that it There was an entire failure of evidence to prove that the defendants broke any warranty or negligently placed the gun upon the market, and the motion to open the nonsuit was properly refused.

was so.

* *

There is no error.