This section is from the book "The Gardener's Monthly And Horticulturist V20", by Thomas Meehan. See also: Four-Season Harvest: Organic Vegetables from Your Home Garden All Year Long.
Last winter, in conversation with a leading nurseryman, I ventured the opinion that not more than one-third of the Pear trees theretofore sold as Souvenir du Congres had been genuine. He agreed with me. Another very active and intelligent nurseryman standing by insisted that the proportion of genuine trees of that variety had not exceeded one-sixth of the whole number sold as such. Be this as it may, it is bad enough; but unfortunately what is true of the variety mentioned is true of every other new variety, for which its actual merits or the efforts of its introducers have created a demand in excess of their ability to supply at very moderate prices. Unscrupulous nurserymen and dealers are not found willing to accept the profits of selling Apple trees at twenty-five cents each, or Pear trees at fifty cents each, when by simply changing labels the same trees may be readily passed off at from one to three dollars each, and so long as no easily enforced penalties are attached to the commission of frauds of this character, they will continue to be committed.
To such an extent do they now prevail that the agents of nurserymen and dealers, be their principals ever so honorable, are insulted in or refused access to thousands of houses all over the country, simply because the inmates or their friends have been so repeatedly humbugged that they persuade themselves that honesty hasentire-ly departed from the nursery trade. I need scarcely say that this state of things works a great outrage upon the public, and that it puts a tax upon the business of each of the many honest members of the trade.
Frauds in merchandise are by no means confined to the horticultural trade, but they are so much more serious in their results when committed in this trade than many other that they may well be the subject of special legislation. If a man buys a box of ground spice for twenty-five cents, and it proves to be largely burned rye, his loss by reason of this cannot exceed twenty-five cents, and he readily accustoms himself to such losses; but if he buys by name an Apple tree for the same amount, thinking it is a fine sort and just what he wants when it is some worthless thing entirely unadapted to his wants, at the end of five years or more the fraud is developed. His loss then includes the original consideration and interest, the use of the ground, the care.he has given the tree, and the prospective profit or enjoyment which the genuine tree would have afforded. After repeatedly suffering such losses, it can hardly be a matter of surprise that men are discouraged and ready to denounce the entire trade.
In determining what may be done to suppress this evil, it becomes important to consider what is the existing law upon the subject, and why does it fail to reach the desired end.
While it may startle some to learn it, there-can be no doubt that it is now, and for. many years has been, the well-settled law of England and the United States that a seedsman who sells-seeds under a name which it is not in fact, thereby becomes answerable to the purchaser to the full extent of the damage sustained, including the profits of the crop which might have been' realized, estimating it at an average crop from genuine seed in that year, had the seed been genuine. (Randall vs. Roper,96,Eng. Com. Law, 82; Page vs. Parry, 8; Carr & Payne, 7G9; Passenger vs. Thorburn, 34, N. Y, 634; Van Wyck vs. Allen, N. Y., 1877.
By parity of reason it will be seen that a nurseryman or dealer who sells a tree under a name which it is not in fact, does so at his peril, and is answerable for the difference in value to the planter of the tree supplied, and the tree which purported to be supplied, at the period of growth when it becomes practicable to discover the fraud or mistake with certainty. Of course this difference may many times exceed the original consideration for the sale of the tree.
It is needless to say that if even all of those who are the victims of honest mistakes should enforce their claims under this law, the nursery and seed trades would soon be annihilated. But there is no danger of a general enforcement of this law; and it is a knowledge of this fact which prompts men to sell spurious trees, plants and seeds with impunity.
The laws must assume that nurserymen and other merchants supply just what they agree to supply, and hence it throws upon their victims the burden of proving the contrary. With most varieties the question of identity cannot be determined with certainty until the trees have fruited. This may involve waiting five years or more, and even then it may require the evidence of experts or experienced horticulturists. The production of this class of evidence is necessarily expensive, and unless the amount in controversy is large, the victims cannot afford to attempt the enforcement of their rights. Beyond all this is the fact that nursery stock is and must continue to be mostly sold through canvassers. Many of these canvassers are irresponsible. They are in the business to-day and out of it to-morrow, or they or their principals must be sought, and claims enforced against them at great distances - often in other States.
It may be said that the evil can be arrested by making it a penal or criminal offense to falsely label any tree or plant, but then we would have to encounter the same presumption of innocence. We would require the same class of expert proof. We would be obliged to wait for evidence of the alleged fraud to develop; oftentimes until all other offenses committed at the same time, save murder, would have outlawed. We would have to seek the offender where he might happen to be, and the fraud in each individual case would require to be tried separately. Experience in other things shows that the wheels of the law would require to be set in operation by the victims. In most cases this would involve an outlay which the damages sustained would not warrant them in making, and for no part of this outlay could they lawfully re-imburse themselves Hence, except in aggravated cases, the law would remain as dead a letter as the present law is.
The question now arises, Can nothing be done1 to lessen this great evil? I think there can be, and it was its supposed capability of doing this, that first directed my attention to a horticultural! copyright law. As any discussion of this feature of the subject was omitted in the order of publication intended, I will in another communication endeavor to show how a copyright law would act on frauds, and why such a law may be expected to materially lessen the commission of such frauds.