298
TJie Green Bag,
things, or shrubs or trees, for the purposes of trade. (Enipson v. Soden, 4 B. & Ad. 655; Wyndham r. Way, 4 Taunt. 316; Wardell v. Asher, 3 Scott. N. S. 508.) What is fruit and what is a vegetable? A discussion once arose between an importer and a collector of customs over tomatoes, the former said the tomato was a fruit, and so came into the country free, the latter said it was a vegetable and should pay duty. The Supreme Court of the United States was called upon to settle the question. One judge said, Vegetables are such things as are eaten after the soup and fish, along with the meats; while fruits are eaten after the meats as dessert. Therefore, because tomatoes are eaten after the soup and fish, along with the meats, they are vegetables." (Supreme Ct. Reporter, Vol. XIII, No. 25.) This con clusion may be right, but is the definition accurate? If currant jelly is eaten with mut ton, is currant jelly therefore a vegetable? or are cranberries vegetables because gob bled with the Christmas gobbler? or is the golden pumpkin a fruit? It often appears in pie form at dessert. The "bean" is a vegetable which all patri otic Massachusetts lawyers should cultivate, not only because, in Boston, they are some times eaten with pork, and according to Mr. John Fiske the early Bostonians owed much of their liberties to a stray pig: but also be cause in those innocent days of yore the free men yearly chose the assistants by ballots of beans and Indian corn: the latter grain was to elect, the former, to reject. (Rook of Gen. Law & Lib. 1649; the Beginnings of New England, p. loo.) One of the most aggravating annoyances to the gardener—be he amateur or profes sional—results from the purchase of bad or impure seeds, or seeds not asked for. If a dealer sells an article marked and put up tinder a certain name, and so billed to the purchaser, this amounts to an absolute war ranty or guaranty that the seeds are what they were bought and sold for: and if they turn out otherwise the gardener has his rem
edy against the seller for the money he paid for the seed, if not for something more. And this is so even though the seedsman was per fectly honest and bought the seed for ex actly the kind he sold them for. (Allan v. Lake, 18 Q. B. 560.) But what a poor satisfaction for the loss of time, and work, and profit, and blighted hopes, is the mere recovery of the money paid. Fortunately it is now generally held that when a seedsman expressly warrants his wares to be of a particular kind or variety, or when he sells them without any reservation or limitation, and thus creates an implied warranty, he is liable for all the damages di rectly following from the gardener's use of the seed. A man once bought "early, strapleafed, red-top turnip seed, and sowed it; he waited until the time of harvest and then found he had "Russia late," a variety un saleable in the market and only fit for cattle. He recovered from the seedsman the dif ference between the value of the crop which he had had and that which he expected to have, even though the seller had honestly thought the seed was as represented. (/ Vroom 262; 9 Vroom 496; 34 N. Y. 634.) If the seed turns out absolutely worthless, and your crop of no value, you can make the dealer pay not only the cost of the seed, but for all the labor incurred and the fair profit you would have made had the seed been as represented. This was decided in a case where one had bought what was represented as "Van Wycklen's early flat Dutch cab bage; and Van Wycklcn had never grown it, and the plants would not head. (Van Wyck 7'. Allen, Гх) N. Y. 72.) In an English case where seed was bought as "Chevalier seed Barley," and it was not so. the pur chaser was allowed as damages the differ ence in value of the two crops. (Randall r. Raper, El. Bl. & El. 84.) One can understand the contrariness of things inanimate and why so many good men are unsuccessful with their gardens, and grow profane instead of cabbages, plant raspberries and gather tears, if it is true as
