Cite as 24 A.D. 1087 that he drew a draft on Respondent dated June 30, 1964, that said draft was processed through the banking channels and that notification that the draft had been refused was received by Complainant on July 14, 1964. * * * * * That the cause of action did not accrue until such time The violation of the Act which constitutes the basis for the cause of action set forth in the complaint, is the alleged failure to pay to complainant the amount owed under a contract. Accordingly, the 90 day period began to run when the obligation to pay arose rather than at the time complainant received notice that the draft was dishonored. Harrison v. U. S., 20 C. Cls. 175 (1885); Smith Courtney Co. v. U. S., 46 C. Cls. 262 (1911); Manufacturers Aircraft Ass'n. v. U. S., 77 C. Cls. 481 (1933); Wichita National Bank v. United States Fidelity & Guaranty Co., 147 S.W. 2d 295 (Texas, 1941); Toft v. Acacia Mausoleum Corporation, 54 N.E. 2d 616 (Illinois, 1944). Complainant failed to allege facts which would show when payment became due or that the complaint was timely filed. Therefore, the complaint must be and is hereby dismissed. Copies hereof shall be served upon the parties. (No. 10,045) GROWERS EXCHANGE, INC. v. NEIMAN BROS. PACA Docket No. 9568. Decided August 3, 1965. Reconsideration-Petition for, dismissed As the order of May 12, 1965, is supported by the evidence and the law applicable thereto, respondent's second petition for reconsideration is dismissed. Decision by Thomas J. Flavin, Judicial Officer ORDER UPON RECONSIDERATION In this proceeding under the Perishable Agriculture Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.), an order was issued May 12, 1965, awarding reparation to complainant Cite as 24 A.D. 1088 against respondent. On June 23, 1965, an order was issued, in part, dismissing respondent's petition for reconsideration of the order of May 12, 1965. Due to unusual circumstances, respondent, on July 23, 1965, was given until July 30, 1965, within which to file a second petition for reconsideration and the order of June 23, 1965, was stayed pending the issuance of a further order in this proceeding. Respondent filed a petition for reconsideration July 30, 1965. The matters set forth in respondent's petition were carefully considered at the time of the issuance of the prior orders herein. We find that the order of May 12, 1965, is supported by the evidence of record and by the law applicable thereto. Accordingly, respondent's petition should be and hereby is dismissed without prior service upon complainant. The stay order of July 23, 1965, is hereby vacated and the order of May 12, 1965, is reinstated. Under the circumstances herein, the reparation awarded in the order of May 12, 1965, shall be paid by respondent to complainant within 15 days from the date of this order. This order shall be published and copies hereof shall be served upon the parties. (No. 10,046) WILLIAM LIND v. GEORGE F. JOSEPH ORCHARD SIDING, INC. PACA Docket No. 9111. Decided August 5, 1965. Interim order--Burden of proof-Credibility of witnesses-Contract Where conflict of testimony exists, the greater weight is attached to presiding officer's findings that complainant has not sustained burden of proving that produce was disposed of by respondent at auction without his authority. Proceeding held in abeyance to permit respondent time to tender payment again of the net proceeds. Mr. Carl L. Loy, Yakima, Wash., for complainant. Halverson, Applegate, McDonald & Weeks, Yakima, Wash., for respondent. Mr. Karl A. Kern, Presiding Officer. Decision by Thomas J. Flavin, Judicial Officer Cite as 24 A.D. 1088 PRELIMINARY STATEMENT This is a reparation proceeding under the Perishable Agricultural Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.). An informal complaint was filed January 18, 1963. The formal complaint was filed May 7, 1963. Complainant seeks an award of reparation in the amount of $6,000, later reduced to $2,786.10 during the hearing, which amount is alleged to be the damages sustained by complainant as a result of respondent's handling of two carloads of complainant's Bartlett pears in November 1962. A copy of the report of investigation prepared by the Department was served upon complainant on May 27, 1963. A copy of the report of investigation and a copy of the formal complaint were served upon respondent on the same date. Respondent filed an answer on June 14, 1963, denying generally the material allegations of the complaint. Respondent requested an oral hearing. An oral hearing was held at Yakima, Washington, on January 22, 1965. Complainant and respondent were represented by counsel. Complainant testified on his own behalf and called three of respondent's witnesses to testify. Five witnesses testified on behalf of respondent. Briefs were submitted by both parties. FINDINGS OF FACT 1. Complainant, William Lind, is an individual whose address is 5096 Sunset Avenue, Yakima, Washington. 2. Respondent, George F. Joseph Orchard Siding, Inc., is a corporation doing business in its own name and also in the name of George F. Joseph, whose address is Post Office Box 1558, Yakima, Washington. At the time of the transactions involved herein, respondent was licensed under the act. 3. In the summer of 1962 respondent's general manager, Arthur W. Enbom, contacted complainant to solicit the handling of complainant's pears (both Bartletts and D'Anjous) in respondent's growers' pool with a guarantee of the cannery price which is established by representatives of the growers in early September of each year. 4. On or about August 23, 1962, respondent's representative received a call from complainant requesting that picking bins be sent to his orchard. The bins were sent and complainant Cite as 24 A.D. 1088 delivered his Bartlett pears to respondent in 89 bins for storage only, declining to participate in the pool or to give respondent any selling authority. 5. On or about September 7, 1962, complainant entered into a written agreement with respondent to pool complainant's D'Anjou pears with a price guarantee. These D'Anjou pears were delivered to and sold by respondent. They are not involved in this controversy. 6. On or about September 10, 1962, after the cannery price for Bartletts had been established, complainant declined again to enter a pool agreement with respondent on his Bartletts. An oral agreement was reached, however, that respondent would pack complainant's Bartlett pears in plain wraps and in boxes with plain lids but with respondent's labels on the box ends. This procedure was intended to protect complainant's desire that he be entitled to sell his Bartlett pears himself in any manner, to any purchaser, or through any broker he might desire. Complainant agreed to be responsible to respondent for packing and storage charges and, if the pears were sold by respondent, for respondent's selling and shipping charges. 7. On or about September 20, 1962, after the last of respondent's Bartletts were sold and shipped, respondent's sales manager, James F. Truesdale, called on complainant to discuss the dispoosition of complainant's Bartletts. Complainant stated he wanted $3,250 net to him for his 1,850 boxes of Bartletts. Complainant was advised that his price was unrealistic. 8. On or about September 30, 1962, Truesdale again called on complainant to see if complainant would be willing to sell his Bartlett pears in odd lots. Complainant was not interested. 9. On or about October 11, 1962, complainant was contacted by telephone by Truesdale to see if he had changed his mind. He had not. Complainant told Truesdale that he was leaving for Los Angeles, California, to try to dispose of his pears there. 10. On or about October 31, 1962, Truesdale again telephoned complainant and ascertained that complainant had not been able to sell his Bartletts in Los Angeles. Truesdale told complainant that time was rapidly running out on Bartlett pears and that if they were not sold soon, complainant might not ever recover his packing charges. It was suggested to complainant that complainant's pears be sent to auction in New York, New York, Cite as 24 A.D. 1088 one car on November 5, 1962, and the other car on November 8, 1962. Complainant agreed to this. 11. On or about November 5, 1962, car PFE 4027 was shipped by respondent from Yakima, Washington, in interstate commerce, to Krass-Joseph Inc., at Chicago, Illinois, for possible diversion to another market. This car contained 922 boxes of Bartlett pears. 12. On or about November 6, 1962, respondent was advised by its eastern representatives not to bring PFE 4027 into New York and that it could probably be sold better advantage at Cleveland, Ohio. This information was given to complainant, who agreed to the change in destination. 13. On or about November 8, 1962, car PFE 48451, containing 928 boxes of Bartlett pears, was shipped from Yakima, Washington, by respondent to itself in Chicago. Upon the car's arrival in Chicago, respondent was informed by its eastern representative that the market continued low in New York, and it was again recommended to respondent that the car be diverted to Cleveland. This information was relayed to complainant, who agreed to the diversion. 14. Car PFE 4027 arrived at Cleveland on or about November 12, 1962, and the pears were sold between that date and December 5. Car PFE 48451 arrived at Cleveland on or about November 14, and the pears were sold between that date and December 3. Respondent received proceeds from such sales of $3,307.28, and its charges for packing, loading and advertising assessment totaled $3,133.90, leaving net proceeds of $173.38. Respondent waived storage charges and sales commission in the amount of $555. 15. On or about December 11, 1962, complainant came to the office of respondent to receive the accounting on both loads and a checks for the net proceeds. A check in the amount of $173.38 was tendered to and refused by complainant. 16. The formal complaint was filed May 7, 1963, which was within 9 months after the alleged causes of action accrued. CONCLUSIONS Although George F. Joseph Orchard Siding, Inc., and George F. Joseph are both named as respondents in the caption of the formal complaint, in the body of the complaint only the corpora |