Cite as 24 A.D. 1016

CONCLUSIONS

Complainant, in his formal complaint, has named both the inuividual William Kenneth Marz and the partnership composed of Lawrence Thoms and Carole Rooney as parties respondent herein, and asks that reparation of $7,669.41 be awarded against them jointly and/or severally.

Respondent Marz, in his answer to the formal complaint, admits the purchase, receipt and acceptance from complainant of the three lots of produce involved herein. Accordingly, this respondent is liable to complainant for the total of the agreed purchase prices of the commodities involved herein, plus freight, amounting to $7,669.41, less provable damages caused by any breach of contract on the part of complainant. The burden of proving both breach and damages, by a preponderance of the evidence, rests upon respondent Marz.

Marz, in his verified answer, alleges that complainant breached the contract between the parties, in that 80% of the load purchased by Marz on February 10, 1964, arrived at contract destination in a frozen condition. Respondent Marz takes the position that, due to such alleged freezing damage, he is excused from paying complainant 80% of the contract price on this load, or $2,818.81. He admits owing the balance of $704.70, as well as the agreed purchase prices, plus freight, on the other two loads, for a total of $4,850.60.

We find it unnecessary to determine either the presence or the extent of the freezing injury here, for even if we assume, arguendo, that 80% of the load was found to have been frozen at contract destination, such loss occurring in transit would still fall on respondent under the f.o.b. terms of the contract. (See section 46.43 (i) of the regulations). If freezing damage occurred prior to the time the load was billed out by complainant, then of course the loss would fall on complainant, but this has neither been alleged nor proved. We conclude, therefore, that respondent Marz is liable to complainant for the total of the contract prices of the three loads, plus freight, or $7,669.41.

Having resolved the liability of respondent Marz, we next consider the liability, if any, of respondent partners Thoms and Rooney in connection with these transactions. The partners deny liability to complainant, on the ground that the business was sold to Marz on February 1, 1964, and that they had no connection with L. & A. Produce at the time the transactions were had with

Cite as 24 A.D. 1016

complainant. Respondent partners also allege that complainant was alerted to the possibility of a change in ownership of L. & A. Produce, since Marz talked by telephone with complainant the latter part of January 1964 and discussed the possibility of Marz buying the business. Complainant, in his opening statement, admits that he did talk with Marz at the time indicated, but testifies that he was only told that Marz "might come into the business."

The actions of the partners in disposing of the firm property had the effect of dissolving the partnership. Brand v. Erisman, 84 U.S. App. D.C. 194, 172 F. 2d 28 (D.C. Cir. 1948); 68 C.J.S., Partnership & 344. Persons who had dealings with the firm, such as complainant, were entitled to receive, in some form, notice of dissolution, Triangle Machine Co. v. Dutton & Adams, 13 La. App. 14, 127 So. 54 (1930); Schwartz Bros. & Co. v. Beacham, 157 Miss. 93, 127 So. 689 (1930); Adkins v. Hash, 190 Va. 86, 56 S.E. 2d 60 (1949); 68 C.J.S., Partnership § 366, and where such dealings, as here, involved the extension of credit, were entitled to personal or actual notice of dissolution. R. C. Poage Milling Co. v. Joseph Howard & Co., 227 Ky. 353, 13 S.W. 2d 266 (1929); 68 C.J.S., Partnership § 366.

It is clear from the evidence in this case that actual notice of dissolution of the partnership was not given to complainant prior to his entering into the transactions which form the basis of this action. While complainant admits that there was some discussion with Marz in January 1964 having to do with some contemplated changes in the ownership of L. & A. Produce, the exact nature of the contemplated changes was never explained to complainant prior to the dealings involved herein. The partners, in fact, appear never to have given complainant any notice of the change of ownership with respect to L. & A. Produce and the resulting dissolution of the partnership. This information came to complainant from Rooney in March 1964. In addition to this lack of actual notice to complainant, Marz, upon his acquisition of the business, retained Rooney as sales manager and operated the business as L. & A. Produce, so that the overall effect would tend to foster in complainant the belief, in our opinion, that no change had been made in the ownership or operation of the business.

Since respondent partnership failed to give notice to complainant regarding the dissolution of the partnership and the subsequent acquisition of the business by Marz, the partnership is

Cite as 24 A.D. 1021

liable to complainant, jointly and severally with respondent Marz, for the total of the purchase prices, plus freight, of the three lots of produce involved herein, amounting to $7,669.41. An order in this amount should be issued against respondents, jointly and severally, in complainant's favor, with interest. Of course, payment to complainant of the total amount of $7,669.41, with interest, will discharge his claim.

It is to be noted that an order requiring the payment of the undisputed amount of $4,850.60 was issued against respondent Marz on December 14, 1964, based upon the admission contained in his answer that he owed this amount to complainant in connection with these transactions. This award has not been paid by respondent Marz and is included as a part of, and is not in addition to, the reparation awarded in this order.

ORDER

Within 30 days from the date of this order, respondents, jointly and severally, shall pay to complainant, as reparation, $7,669.41, with interest thereon at the rate of 5 percent per annum from March 1, 1964, until paid.

Copies of this order shall be served on the parties.

(No. 10,003)

JOHN INGLIS FROZEN FOODS COMPANY v. GISINGER SOUTHWESTERN FOOD DISTRIBUTORS, INC., A/T/A SOUTHWESTERN FOOD DISTRIBUTORS. PACA Docket No. 9813. Decided July 30, 1965.

Failure to file motion to reopen-Default order reinstated

Decision by Thomas J. Flavin, Judicial Officer

ORDER VACATING STAY ORDER

In this proceeding under the Perishable Agricultural Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.), a default order was issued June 15, 1965, awarding reparation to complainant against respondent. On June 30, 1965, respondent was given an extension of time within which to file a motion to reopen the proceeding after default in the filing of an answer pursuant to section 47.25 (e) of the rules of practice (7 CFR 47.25 (e)) and

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the order of June 15, 1965, was stayed pending the issuance of a further order in this proceeding. Respondent has not filed a motion to reopen the proceeding after default and, accordingly, the order of June 30, 1965, is hereby vacated and the order of June 15, 1965, is hereby reinstated with the reparation awarded therein to complainant against respondent to be paid within 30 days from the date of this order.

ORDERS ISSUED BY THOMAS J. FLAVIN, JUDICIAL OFFICER

DISMISSAL ON MOTION OF COMPLAINANT

(No. 10,004)

BLUE GOOSE GROWERS, INC. v. WM. ROSENSTEIN & SONS Co. PACA Docket No. 9760. Dismissed July 15, 1965.

DISMISSAL ON MOTION OF PARTIES

(No. 10,005)

LOWELL J. SCHY COMPANY v. HAPPY VALLEY DISTRIBUTING CO., INC. PACA Docket No. 9474. Dismissed July 6, 1965.

REPARATION AWARDED-ADMISSION OF LIABILITY

(No. 10,006)

GONZALES PACKING Co. v. MAGIC VALLEY PRODUCE COMPANY, a partnership, and MAGIC VALLEY PRODUCE COMPANY, a corporation. PACA Docket No. 9778. Reparation of $8,007.75 with 5 percent interest from September 1, 1964, awarded complainant against respondents in order issued July 2, 1965.

Cite as 24 A.D. 1023

REPARATION AWARDED-DEFAULT ORDER

(No. 10,007)

CUTLER GROWERS EXCHANGE v. LOWELL J. SCHY COMPANY. PACA Docket No. 9829. Reparation of $5,779.60 with 5 percent interest from November 1, 1964, awarded complainant against respondent in order issued July 15, 1965.

(No. 10,008)

W. O. ODOM PRODUCE Co. v. M. COSTANZI COMPANY. PACA Docket No. 9828. Reparation of $2,319.84 with 5 percent interest from June 1, 1964, awarded complainant against respondent in order issued July 15, 1965.

(No. 10,009)

S. B. DAVIS COMPANY v. STANDARD FRUIT & PRODUCE COMPANY. PACA Docket No. 9831. Reparation of $2,696.25 with 5 percent interest from January 1, 1965, awarded complainant against respondent in order issued July 16, 1965.

(No. 10,010)

B. G. ANDERSON CO. INC. v. MAX J. BADLER AND JOSEPH FELDERSTEIN, d/b/a D. MESSINA, JR. PACA Docket No. 9833. Reparation of $100.95 with 5 percent interest from August 1, 1964, awarded complainant against respondent in order issued July 21, 1965.

(No. 10,011)

BROWN & HILL TOMATO SHIPPERS, INC. v. MAGIC VALLEY PRODUCE COMPANY. PACA Docket No. 9832. Reparation of $1,586.25 with 5 percent interest from September 1, 1964, awarded complainant against respondent in order issued July 21, 1965.

(No. 10,012)

ARROWHEAD GROWERS SALES COMPANY, INC. v. BADGER FROZEN FOODS, INC. PACA Docket No. 9837. Reparation of $150 with 5 percent interest from November 1, 1964, awarded complainant against respondent in order issued July 22, 1965.