Cite as 24 A.D. 1013 2. Respondent Green Valley Produce is a partnership composed of Curtis Charles Damon and John G. Stafos, whose address is P. O. Box 514, San Juan, Texas. At the time of the transaction involved herein, this respondent was not licensed under the Act, but was operating subject to license. 3. Respondent William G. Stafos is an individual whose address is P. O. Box 56, Muncie, Kansas. At the time of the transaction involved herein, this respondent was not licensed under the Act, but was operating subject to license. 4. On or about May 20, 1964, in the course of interstate commerce and by oral contract, complainant sold to respondents three truckloads of cantaloupes, one truckload to be shipped each day if possible, for invoice prices of $1,718.85, $2,631.75, and $1,619.50, f.o.b. shipping point. Respondent William G. Stafos instructed complainant to draft him for the invoice prices. 5. Complainant shipped from McAllen, Texas, to respondents at Kansas City, Kansas, on May 23, May 25, and May 27, 1964, three truckloads of cantaloupes invoiced at $1,718.85, $2,631.75, and $1,619.50, respectively. 6. Upon arrival of the three shipments of cantaloupes at Kansas City, Kansas, they were accepted by respondents in accordance with the contract. 7. Complainant drew drafts against the account of William Stafos in the amounts of the three invoices, but the drafts were dishonored. Subsequently, $1,500 was paid on the total purchase price, leaving an unpaid balance of $4,470.10. 8. The formal complaint was filed on September 3, 1964, which was within 9 months after accrual of the cause of action herein. CONCLUSIONS In the unsworn answer filed by Curtis C. Damon, which appears to be on behalf of respondent Green Valley Produce, Damon admits receiving and accepting three truckloads of cantaloupes from complainant in May 1964, and further states that he arranged transportation and shipped the melons to Kansas City, Kansas. This respondent contends, however, that the cantaloupes were accepted on a consignment basis only. Damon denied any indebtedness in connection with the transaction, although no accounting has been made to complainant, and nothing has been paid complainant except one remittance of $1,500. Cite as 24 A.D. 1013 No additional evidence, such as sworn statements or confirming documents, has been submitted to substantiate the claims made by Curtis C. Damon; and, as we have stated, even the statements made in the answer are not under oath. On the other hand, the complaint filed by complainant is sworn to, and constitutes evidence on behalf of complainant. In addition, there is attached to the report of investigation as Exhibit No. 1, which also is evidence in the case, a sworn statement by James F. Wise, an employee of complainant at the time of the transaction involved herein, in which he states that Curtis Damon and William Stafos, "representing themselves as Green Valley Produce of Kansas City, Kansas," appeared at complainant's place of business on May 20, 1964, and made a deal with Wise for one load of cantaloupes a day, if complainant could supply them; that the melons were sold to respondents f.o.b. McAllen, Texas; and that the cantaloupes were received and inspected by Curtis Damon. The affidavit further supports the allegations of the complaint with respect to the transaction. As the record stands, respondent Green Valley Produce is wholly without evidence to support its position in this controversy. Respondent William G. Stafos failed to file an answer and, therefore, under our Rules of Practice, is deemed to have admitted the allegations of the complaint. It must be concluded that complainant has sustained the burden of proving that it sold and delivered to respondents three truckloads of cantaloupes; that the cantaloupes were received and accepted by respondents; that the total purchase price of the three shipments of cantaloupes was $5,970.10; that a payment of $1,500 was made; and that no additional amount has been paid complainant on account of the cantaloupes. We conclude that respondents' failure to pay complainant the balance of $4,470.10 was and is in violation of Section 2 of the Act. Complainant should be awarded reparation in that amount against respondents, jointly and severally, plus interest. Of course, payment of the total amount of $4,470.10, with interest, to complainant will discharge its claim. Newbern Groves, Inc. v. Bisesi Fruit Co. and/or Lally, Berthelson & Welsh, Inc., 18 A.D. 738. ORDER Within 30 days from the date of this order, respondents, jointly and severally, shall pay to complainant, as reparation, $4,470.10, with interest thereon at the rate of 5 percent per annum from July 1, 1964, until paid. Cite as 24 A.D. 1016 The facts and circumstances as set forth herein shall be published. Copies of this order shall be served upon the parties. (No. 10,002) ALBIN P. CRUTCHFIELD v. W. & K. MARZ PRODUCE AND/OR L. & A. PRODUCE. PACA Docket No. 9605. Decided July 30, 1965. Freezing injury-Not established-Partnership-Failure to give Having accepted produce and having failed to prove alleged freezing injury, individual respondent liable for contract price together with partnership respondent which failed to give actual notice of dissolution to seller who had previouly dealt with partnership. Complainant and respondents pro se. 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 of $7,669.41 against respondents, jointly and/or severally, in connection with transactions in interstate commerce involving three truckloads of fruits and vegetables. A copy of the report of investigation prepared by the Department was served on complainant. A copy of the formal complaint and a copy of the report of investigation were served on each of the respondents. Respondent, L. & A. Produce, a partnership, composed of Carole Sue Rooney and Lawrence Gustav Thoms, filed an answer to the complaint, wherein it denied liability to complainant. Respondent, W. & K. Marz Produce, which is the trade name of an individual, William Kenneth Marz, also filed an answer to the formal complaint, wherein he admitted the purchase, receipt and acceptance of the subject produce. Marz also admitted liability to complainant in the sum of $4,850.60 in connection with these transactions, but denied liability to complainant for the balance claimed. Cite as 24 A.D. 1016 On the basis of the admission contained in the answer filed by respondent William Kenneth Marz, an order for the undisputed amount of $4,850.60 was issued against this respondent in complainant's favor on December 14, 1964. The liability of respondent Marz for the remaining disputed amount of $2,818.81, however, was left for subsequent determination in the same manner and under the same procedure as would have been the case if no order for payment of the undisputed amount had been issued. Although the amount of damages claimed in the complaint exceeds $1,500, the parties waived oral hearing and the evidence was submitted under the shortened procedure set forth in section 47.20 of the rules of practice (7 CFR 47.20). Pursuant to this procedure, complainant filed an opening statement. Each of respondents was given the opportunity but did not file an answering statement. None of the parties filed a brief. FINDINGS OF FACT 1. Complainant is an individual, Albin P. Crutchfield, whose address is P. O. Box 1988, Titusville, Florida. 2. Two respondents are named herein, the first being a partnership composed of Lawrence Gustav Thoms and Carole Sue Rooney, doing business as L. & A. Produce, whose address is 6525 King Avenue, Allen Park, Michigan. At the time of the transactions involved herein, this respondent was licensed under the act. The second respondent is an individual, William Kenneth Marz, doing business as W. & K. Marz Produce, and for a time, also, as L. & A. Produce, whose address is 1938 LeBlanc, Lincoln Park, Michigan. At the time of the transactions involved herein, this respondent was not licensed under the act, but was subject to license. 3. On February 1, 1964, respondent partners Lawrence Thoms and Carole Rooney sold their interest in L. & A. Produce to respondent William Marz. At the time of the purchase, Marz retained A. L. Rooney as sales manager, which position Rooney had held when the business was a partnership. 4. On February 6, 1964, in the course of interstate commerce, Marz, acting through Rooney and under the trade name of L. & A. Produce, purchased from complainant a partial truckload of Florida oranges at an agreed price of $484.45, f.o.b. loading point in the State of Florida, plus freight charges of $82.80, or a total Cite as 24 A.D. 1016 of $567.25. Pursuant to such sale complainant, on February 7, 1964, shipped from loading point in the State of Florida to L. & A. Produce, 5209 Allen Road, Allen Park, Michigan, oranges meeting contract requirements. Upon arrival at destination, the shipment was received and accepted by Marz. 5. On February 10, 1964, in the course of interstate commerce, Marz, acting through Rooney and under the trade name of L. & A. Produce, purchased from complainant one truckload of Florida produce consisting of mixed vegetables and citrus, at an agreed price of $3,084.66, f.o.b. loading point in the State of Florida, plus freight charges of $438.85, or a total of $3,523.51. Pursuant to such sale complainant, on February 11 and 12, 1964, shipped from loading points in the State of Florida to L. & A. Produce, 5209 Allen Road, Allen Park, Michigan, fruit and vegetables meeting contract requirements. Upon arrival at destination, the shipment was received and accepted by Marz. 6. On February 13, 1964, in the course of interstate commerce, Marz, acting through Rooney and under the trade name of L. &A. Produce, purchased from complainant one truckload of Florida produce consisting of mixed vegetables and citrus, at an agreed price of $3,101.90, f.o.b. loading point in the State of Florida, plus freight charges of $476.75, or a total of $3,578.65. Pursuant to such sale complainant, on February 14 and 15, 1964, shipped from loading points in the State of Florida to L. & A. Produce, 5209 Allen Road, Allen Park, Michigan, fruit and vegetables meeting contract requirements. Upon arrival at destination, the shipment was received and accepted by Marz. 7. Complainant, prior to the transactions involved herein, had dealt with L. & A. Produce as a partnership, with Rooney as its sales manager. At the time of the transactions involved herein, complainant had no actual knowledge that a change in the ownership of L. & A. Produce had been made. 8. The total of the f.o.b. purchase prices of the three lots of produce involved herein, plus the total of the foreign charges on the three lots, is $7,669.41, no part of which has been paid. 9. The formal complaint was filed on September 14, 1964, which was within 9 months after the causes of action herein accrued. |