Jones

Appellant, a grower and seller of vegetable seeds, with his principal place of business located in Stockton, California, sent to his customers a “surplus list” showing the seeds he had in stock and the prices asked. Attached to the “surplus list” was a blank form of contract of sale. One of the provisions contained in said blank form was the following:

“5. Except as herein otherwise expressly provided, the seller gives no undertaking or warranty, express or implied, as to description, quality, productiveness, or any other matter of any seeds sold by it and will not be in any way responsible for the crop.”

Appellee, a firm located in Denver, Colorado, and engaged in the sale of seed, received the said “surplus list” through the mails. Among the seeds listed were “Yellow Globe Danvers” onion seed at a price of $3.00 per pound. Upon receipt of the list appellee’s manager contacted appellant by long distance telephone and made him an offer to purchase a ton of “Yellow Globe Danvers” onion seed, as well as several other items. After' some negotiations, appellant agreed to sell the onion seed at a price of $2.50 per pound. The manner of shipment and the terms of payment were also…