Cite as 24 A.D. 1001 amount of seedstems and that the broker should make this fact very clear to respondent. The broker, on April 16, 1964, advised a representative of the Department that complainant had said that all of the lettuce was showing seedstems, but these were not bad, and that he (the broker) told respondent's manager, Ed Knight, "there absolutely would be seedstems but not excessive." However, in a subsequent letter to the Department, dated June 23, 1964, the broker states that "The description was that it was nice, green lettuce but it did have some seedstem; described as minor but it did have some-as did the entire area at that time. The description was passed on to Mr. Knight, specifically making note that it did have some seedstem. Mr. Knight stated that as long as this seedstem defect was not serious to go ahead and load the load for him." In reviewing the evidence before us, including the statements made by the broker, we conclude that complainant warranted that the lettuce involved herein would not contain excessive damage by seedstems. We further conclude, after a careful study of the Federal inspection certificate issued at destination on November 14, showing quality defects averaging 59%, generally seedstems, that this warranty was breached by complainant, in violation of section 2 of the act. The general measure of damages for breach of warranty, where the receiver has accepted the goods, is the difference between the value of the goods actually delivered to the buyer, at the time and place specified in the contract, and the value the goods would have had at that time if they had met the specifications of the contract, Corte & Sons v. Lerner & Son, 14 A.D. 320. With respect to the value the shipment would have had if it had met contract specification, there being no other evidence available, we will accept as indicative of such value the f.o.b. contract price of $2,553.60, plus freight to destination of $600, for a total of $3,153.60. East Coast Distributors v. Felix Rhymes, Inc., 13 A.D. 629. The actual market value of goods delivered may be evidenced by the resale price when such goods are resold by the buyer in a prompt and proper manner. Kirby & Little Packing Co. v. United Fruit & Produce Co., 16 A.D. 1066. In this case respondent has offered in evidence a copy of the account of sales rendered to complainant in connection with the disposition of the subject lettuce. The account of sales, dated January 20, 1964, shows proceeds of $586.50 realized on the resale of 417 cartons of lettuce, with 10 cartons being lost from Cite as 24 A.D. 1001 inspection and 533 cartons being dumped. The account of sales, dated more than two months after the arrival of the subject car at contract destination, does not show when the resale was accomplished, but there is some evidence in the report of investigation that it took place between November 19 and November 23, 1963. On the basis of the evidence, we accept the proceeds set forth in the account of sales submitted by respondent as indicative of the value of 417 cartons of the lettuce actually received at contract destination and resold by respondent. However, the evidence is not sufficient to show the necessity for the dumping of the 533 cartons of lettuce, as reported by respondent in its accounting, and therefore this item is disallowed. Likewise, the 10 cartons of lettuce claimed to have been lost during the inspection are not chargeable to complainant, since this loss was the result of respondent's attempt to secure evidence of complainant's breach of contract. Accordingly, this item in respondent's accounting is also disallowed. Concerning the value of these 543 cartons of lettuce, we believe they would have been disposed of at an average of the prices received on the 417 cartons which were resold, or $1.41. Multiplying this average of $1.41 per carton by 543, gives us $765.63 for the quantity allegedly dumped and lost in the course of the inspection. We add this figure of $765.63 to the proceeds of $586.50 reported by respondent, giving us a total of $1,352.13, which is the value of the lettuce actually received by respondent. Substracting this amount, $1,352.13, from the value of a carload of lettuce meeting contract requirements, $3,153.60, leaves $1,801.47 as damages suffered by respondent due to complainant's breach. Substracting respondent's damages of $1,801.47 from the contract price of the lettuce, $2,553.60, leaves $752.13 due complainant from respondent in connection with this transaction. Respondent's failure to pay this sum to complainant is in violation of section 2 of the act, for which reparation should be awarded with interest. Respondent, in the counterclaim included in its answer, has requested reparation against complainant in the amount of $121.50 for expenses incurred for inspection, brokerage fee, and freight charges. Respondent's request must be denied, however, since the expense of securing an inspection is not allowable, the brokerage fee was paid by complainant, and the freight charges were considered in arriving at respondent's damages. The counterclaim, therefore, should be dismiissed. Cite as 24 A.D. 1006 ORDER Within 30 days from the date of this order, respondent shall pay to complainant, as reparation, $752.13, with interest thereon at the rate of 5 percent per annum, from December 1, 1963, until paid. The counterclaim is dismissed. Copies of this order shall be served on the parties. (No. 9999) LAKE OF THE WOODS FOUNDATION SEED POTATO GROWERS CO-OP., INC. v CONSOLIDATED POTATO SERVICE. PACA Docket No. 9624. Decided July 29, 1965. Rejection not established-Failure to prove extent of damage— Having accepted seed potatoes by unloading, washing, repacking and reselling and having failed to establish extent of damage to potatoes and to follow procedures in support of claimed loss through shrinkage, respondent liable for balance of contract price. Complainant pro se. Morrow & Pope, Dodgeville, Wis., for respondent. Mr. James V. Wright, Presiding Officer. Decision by Thomas J. Flavin, Judicial Officer PRELIMINARY STATEMENT This is a reparation proceeding under the Perishable Agricultural Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.). A timely complaint was filed in which complainant seeks reparation against respondent in connection with a transaction involving a truckload of potatoes in interstate commerce. A copy of the formal complaint and a copy of the Department's report of investigation were served upon respondent. A copy of the report of investigation also was served upon complainant. Respondent filed an answer to the formal complaint, denying liability to complainant. Cite as 24 A.D. 1006 Since the amount claimed herein does not exceed $1,500, the evidence is submitted under the shortened procedure provided in the rules of practice (7 CFR 47.20). Pursuant to this procedure, complainant and respondent, respectively, were given the opportunity to file an opening and an answering statement, but did not do so. Complainant filed a brief. FINDINGS OF FACT 1. Complainant, Lake of the Woods Foundation Seed Potato Growers Co-op., Inc., is a corporation whose address is P.O. Box 486, Baudette, Minnesota. 2. Respondent is an individual, Glenn Victor Hostettler, doing business as Consolidated Potato Service, whose address is 518 5th Avenue, Antigo, Wisconsin. At the time of the transaction involved herein, respondent was licensed under the act. 3. On May 29, 1964, in the course of interstate commerce, complainant sold to respondent 373 hundred-pound sacks of Russet Burbank seed potatoes, size A, at $2.75 per sack, and 100 hundred-pound sacks of Russet Burbank "pick" seed potatoes, at $1.25 per sack, at a total price for the 473 sacks of $1,150.75, f.o.b. shipping point, Baudette, Minnesota. 4. Complainant, on May 30, 1964, shipped 473 hundred-pound sacks of Russet Burbank seed potatoes from Baudette, Minnesota, to respondent at Spring Green, Wisconsin, in a truck operated by one Ivan Dahl. The potatoes were examined by respondent upon their arrival at Spring Green, after which respondent attempted to contact complainant's Executive Secretary, John H. Cox, to complain of the sprouts and decay apparent in the load. Respondent, being unable to reach Cox, then ordered the potatoes to be unloaded, washed, regraded, and resacked, after which they were dispatched to Art Kramer's Produce Buying Service, of Chicago, Illinois, for resale. 5. Art Kramer's Produce Buying Service sold the potatoes received from respondent, and sent complainant the following accounting: 6. Complainant has been paid $332.95 in connection with this transaction. 7. The formal complaint was filed on October 12, 1964, which was within 9 months after the cause of action herein accrued. CONCLUSIONS The first issue presented for our consideration is whether the subject load of potatoes was accepted or rejected by respondent at contract destination. Complainant, in the formal complaint, alleges that the potatoes were accepted by respondent. Respondent in his answer, however, denies this allegation, averring that the acceptance of the said load of potatoes was promptly and immediately refused at the delivery site . . 66 It is undisputed that the potatoes were unloaded by respondent after the arrival of the shipment at contract destination. In this connection it is noted that the regulations in effect at this time, section 46.2 (dd) (1), define "acceptance" as meaning "any act by the consignee signifying acceptance of the shipment, including diversion or unloading; ..." See Grove Supply Company Edney Brothers, 13 A.D. 938, wherein it is held that even the partial unloading of a shipment constitutes an acceptance of the entire load. Moreover, respondent washed, repacked, and resold the potatoes, in addition to unloading same, all of which are indicative of acceptance. Accordingly, it is concluded that the shipment involved herein was accepted by respondent. Having accepted the shipment, respondent became liable to complainant for the agreed purchase price thereof, less provable damages resulting from any breach of contract by complainant. |