Cite as 24 A.D. 1006 O'Donnell Fruit Company of Pittsburgh v. Mathew Mercurio, 18 A.D. 1173. The burden of proof with respect to the warranty, the breach, and the resulting damages rests upon respondent. Respondent alleges that the subject potatoes were purchased from complainant and were warranted as seed potatoes. Respondent further alleges that the warranty was breached when the potatoes arrived at contract destination, in a state of decay and with many of the potatoes of "the wrong size." Complainant does not deny that the potatoes were so warranted, but does question respondent's claim with respect to the alleged breach. Respondent, in addition to his own sworn statement as set forth in the answer, submitted the affidavit testimony of two other witnesses. One of these witnesses, Ray Vanderberg, was an employee of respondent at the time he gave his testimony, while the other witness, Russell Reeve, apparently was not. Both of these witnesses stated that they saw the load of potatoes on arrival at respondent's place of business and that the potatoes contained considerable soft rot and some had sprouts more than 10 inches long. Respondent, in his answer, alleges that the condition of the potatoes at destination forced him to wash and regrade the load, resulting in shrinkage totaling more than 25% of the load. Respondent further alleges that the salable potatoes, consisting of 354 sacks, were then sent to Art Kramer's Produce Buying Service in Chicago, as set forth in Kramer's accounting, and that the remainder, consisting of 119 sacks, were lost as shrinkage in regrading. From the evidence before us, we conclude that some of the potatoes involved herein did have some decay and some sprouts. Respondent, however, has not produced any inspection certificate to confirm the amount of the damage allegedly found in the load at destination. Neither has he availed himself of any of the procedures set forth in section 46.23 of the applicable regulations to support his claimed loss through shrinkage. In view of the large percentage of loss claimed in this case, we consider that respondent has failed to sustain his burden of proof with respect thereto. This is not to say that respondent has sustained no damage at all, but rather that he has failed to sustain his burden of proof with respect to the scope thereof, so that we have no basis upon which to compute the extent of his loss. Cite as 24 A.D. 1010 The f.o.b. contract price of the potatoes involved herein is $1,150.75. Respondent has paid complainant $332.95 of this amount, leaving a balance due of $817.80. 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. ORDER Within 30 days from the date of this order, respondent shall pay to complainant, as reparation, $817.80, with interest thereon at the rate of 5 percent per annum from July 1, 1964, until paid. Copies of this order shall be served upon the parties. (No. 10,000) MILTON R. FELDMAN CO., INC. v. J. HELLMAN PRODUCE, INC. PACA Docket No. 9660. Decided July 29, 1965. Contract-Contract terms-Acceptance-Liability Having failed to establish contract terms other than purchase and sale and having inspected and accepted shipment upon delivery, respondent liable to complainant for purchase price. Complainant and respondent pro se. Miss Lenore H. Langford, 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 the amount of $204, alleged to be the purchase price of onions shipped 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 was also served upon complainant. Respondent filed an answer, denying the transaction as alleged and averring that the onions were handled on consignment for the account of complainant. Since the amount involved does Cite as 24 A.D. 1010 not exceed $1500, the issues are submitted under the shortened procedure provided in the Rules of Practice (7 CFR 47.20). Pursuant to such procedure, complainant filed an opening statement. Complainant also submitted a letter in lieu of a brief. FINDINGS OF FACT 1. Complainant, Milton R. Feldman Co., Inc., is a corporation whose address is 1304 East 7th Street, Los Angeles, California. 2. Respondent, J. Hellman Produce, Inc., is a corporation whose address is 1333 East 8th Street, Los Angeles, California. At the time of the transaction involved herein, respondent was licensed under the Act. 3. On or about June 12, 1964, contemplating shipment in interstate commerce, complainant sold to respondent 85 sacks of Jumbo White onions, at an agreed price of $2.40 per sack, delivered at respondent's place of business. 4. Complainant delivered the onions to respondent's place of business at Los Angeles. Respondent inspected and accepted the onions upon delivery, and thereafter shipped them to Butte, Montana. Respondent has failed to pay complainant the agreed purchase price. 5. The formal complaint was filed on November 2, 1964, which was within 9 months after accrual of the cause of action herein. CONCLUSIONS Respondent contends in its answer that the onions involved herein were not purchased from complainant, but were handled for complainant's account, and were to be paid for by respondent, in an amount to net complainant $2.40 per sack, only if a satisfactory sale was made by respondent to its customers. Respondent further contends that its customer, Safeway Stores, Inc., at Butte, Montana, returned the onions to respondent because of their poor condition, and charged respondent for the freight. Respondent states that complainant agreed to accept "full financial responsibility for the freight as well as the onions because of their quality." Cite as 24 A.D. 1010 Respondent has submitted no supporting evidence, such as sworn statements by parties having knowledge of the facts relating to the transaction or pertinent documents tending to establish respondent's position. In addition to the verified complaint, complainant submitted a sworn opening statement by Milton R. Feldman, in which he states that respondent's claim that the onions in question were handled for complainant's account "is absolutely untrue." Feldman further states that there were 100 sacks of onions billed separately to respondent on a separate invoice, which were on a "to net" basis, and that these onions are the ones that were to be handled for complainant's account. He states that complainant is making no claim for these onions handled for its account. It is further stated in the affidavit that respondent was invoiced immediately upon delivery of the onions, and that the two invoices were returned by respondent to complainant about three weeks after delivery. Respondent claims that the invoices were returned because they were incorrect since the onions were to be handled for complainant's account. Complainant insists that had the invoices been incorrect, respondent would have notified complainant immediately to that effect instead of waiting three weeks to return them. On the basis of the evidence, we conclude that complainant sold and respondent purchased the onions in question, at $2.40 per sack, that respondent has failed to pay the agreed purchase price, and that such failure to pay on the part of respondent is in violation of Section 2 of the Act. Complainant should be awarded reparation in the amount of $204, with interest. ORDER Within 30 days from the date of this order, respondent shall pay to complainant, as reparation, $204, with interest thereon at the rate of 5 percent per annum from July 1, 1964, until paid. The facts and circumstances as set forth herein shall be published. Copies of this order shall be served upon the parties. Cite as 24 A.D. 1013 (No. 10,001) WILLINGHAM-TREVINO PRODUCE CO. v. GREEN VALLEY PRODUCE AND WILLIAM G. STAFOS. PACA Docket No. 9604. Decided July 29, 1965. Consignment-Not established-Acceptance-Liability for purchase price Where contract of purchase and sale established rather than consignment as alleged by partnership respondent and where individual respondent failed to file answer, respondents are jointly and severally liable to complainant for balance of purchase price. Mr. Alfonso A. Guerra, McAllen, Texas, for complainant. Miss Lenore H. Langford, 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 respondents in the amount of $4,470.10, alleged to be the balance due on the purchase price of three shipments of cantaloupes sold and delivered to respondents in interstate commerce. Copies of the formal complaint and copies of the Department's report of investigation were served upon respondent. A copy of the report of investigation was also served upon complainant. Respondent Green Valley Produce filed an answer, denying liability. Respondent William G. Stafos did not file an answer. Since none of the parties requested an oral hearing, although the amount involved exceeds $1,500, the issues are determined under the shortened procedure provided in the Rules of Practice (7 CFR 47.20). Pursuant to such procedure, the parties were afforded an opportunity to submit additional evidence in the form of opening and answering statements. No additional evidence was submitted, and no briefs were filed. FINDINGS OF FACT 1. Complainant is a partnership composed of Ervin Willingham and Loreto G. Trevino, doing business as Willingham-Trevino Produce Co., whose address is P. O. Box 1208, McAllen, Texas. |