Cite as 24 A.D. 1112 ble thereto. Accordingly, respondent's petition is dismissed without prior service upon complainant, the order of June 11, 1965, is reinstated, and the reparation awarded in that order shall be paid within 30 days from the date of this order. Copies hereof shall be served upon the parties. (No. 10,052) BLUE RIBBON SALES COMPANY v. HOLLAR'S PRODUCE & MKT. PACA Docket No. 9679. Decided August 20, 1965. F.o.b. acceptance final-Freezing injury not established-Liability— Failure to pay In f.o.b. acceptance final purchases, respondent failed to prove failure to ripen properly caused by freezing injury or that freezing injury occurred prior to shipment in one load and is liable for contract price thereof plus contract price of second shipment over which there is no controversy. Mr. Sylvester P. Adair, Homestead, Fla., for complainant. Mr. William H. Chamblee, Hickory, N.C., for respondent. Mr. Fred W. Harris, Jr., 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.). An informal complaint was filed on or about June 29, 1964, and a formal complaint was filed on October 22, 1964. Complainant seeks to recover $1,065 which is alleged to be the purchase price of two truckloads of tomatoes sold to respondent in January and February 1964. A copy of the report of investigation made by the Department was served upon complainant on November 27, 1964. A copy of the report of investigation and a copy of the complaint were served upon respondent on November 27, 1964. Respondent filed an answer, including a counterclaim, on December 18, 1964. Respondent alleges that the tomatoes constituting the first truckload purchased on January 18, 1964, were affected by concealed damage or disease and that the defective Cite as 24 A.D. 1112 quality of this truckload of tomatoes caused great loss to respondent and that complainant is liable to respondent in the sum of $1,700 for the latter's loss of profits and expenses incurred as a result of the defective quality of the tomatoes. A copy of the answer was served upon complainant on December 31, 1964. Complainant did not file a reply to the counterclaim and since no reply was filed, under the rules of practice (section 47.9 (c)), the allegations of the counterclaim are regarded as denied. An oral hearing was held at Hickory, North Carolina, on May 18, 1965. Complainant was represented by counsel. One witness testified for complainant and two depositions were introduced into evidence by complainant's attorney. Respondent was represented by counsel and eight witnesses testified for the respondent. Neither party filed a brief. FINDINGS OF FACT 1. Complainant, Blue Ribbon Sales Company, is a corporation whose address is Post Office Box 706, Homestead, Florida. At the time of the transactions herein, complainant was licensed under the act. 2. Respondent is an individual, Kenneth Lamar Hollar, doing business as Hollar's Produce & Mkt., whose address is 604 First Avenue, S.W., Hickory, North Carolina. At the time of the transactions involved herein, respondent was licensed under the act. 3. On or about January 18, 1964, contemplating shipment in interstate commerce, complainant sold to respondent 400 fortypound boxes of No. 3 grade tomatoes at $1.75 per box and 100 forty-pound boxes of No. 3 grade tomatoes at $1.25 per box, f.o.b. acceptance final, Homestead, Florida. 4. On January 18, 1964, complainant delivered to respondent the 500 boxes of tomatoes specified in Finding of Fact No. 3 at Homestead, Florida, which tomatoes were loaded in respondent's truck and were transported to respondent's place of business at Hickory, North Carolina. 5. On or about February 17, 1964, contemplating shipment in interstate commerce, complainant sold to respondent 40 fortypound boxes of No. 3 grade tomatoes at $3.00 per box and 60 forty-pound boxes of No. 3 grade tomatoes at $2.00 per box, f.o.b. acceptance final, Homestead, Florida. Cite as 24 A.D. 1112 6. On February 17, 1964, complainant delivered to respondent the 100 boxes of tomatoes specified in Finding of Fact No. 5 which were loaded in respondent's truck and were transported to respondent's place of business at Hickory, North Carolina. 7. The two truckloads of tomatoes in question were inspected and accepted at shipping point, Homestead, Florida, by complainant or a representative of complainant. 8. Informal complaint was filed within 9 months after accrual of the cause of action herein. CONCLUSIONS Both loads of tomatoes were purchased by agents and brokers of respondent and were inspected by the agents or brokers of respondent at shipping point. The invoices attached to the complaint as Exhibits numbered 1 and 2 and the testimony at the hearing on behalf of complainant disclose that both truckloads were sold on the basis "f.o.b. acceptance final" and respondent has not denied such allegations or testimony. The testimony at the hearing and Exhibit No. 2 of the report of investigation, which is a letter to the Department from respondent's attorney, dated July 1, 1964, clearly discloses that there is no controversy as to the load of tomatoes purchased on February 17, 1964, but that respondent merely has not paid for the same. Respondent complains that the first load of tomatoes was either frost bitten or contained a field disease which caused the tomatoes to rot before they could be ripened properly and that the whole load was practically a total loss and that he suffered damages in connection with the expense of labor in connection with said load and loss of business. The record discloses that these tomatoes were inspected by respondent's representative at shipping point and that the tomatoes looked like any other green tomatoes upon arrival at respondent's place of business. The testimony discloses that the tomatoes were shipped from Homestead, Florida, to Hickory, North Carolina, in an uninsulated furniture van hired by respondent at a time when there is normally some cold weather. It appears that respondent made complaints about this truckload of tomatoes some two to three weeks after receipt of the same to his agents and brokers. The complaints made by respondent were all to his own agents and brokers and not to complainant. Cite as 24 A.D. 1112 It is our conclusion that the basis of sale with respect to both truckloads of tomatoes was "f.o.b. acceptance final." This term is defined in section 46.41 (m) of the applicable regulation (7 CFR 46.41 (m)) as follows: "F.o.b. acceptance final' or 'Shipping point acceptance final' means that the buyer accepts the produce at shipping point and has no right of rejection. Suitable shipping condition does not apply under this trade term. The buyer does have recourse for a material breach of contract, providing the shipment is not rejected. The buyer's remedy under this type of contract is by recovery of damages from the seller and not by rejection of the shipment." Since the respondent accepted the tomatoes, he is liable for the purchase price thereof subject to his right to claim damages resulting from any breach of the contracts on the part of complainant. The burden of proof is upon respondent to establish, by a preponderance of the evidence, both the breach by complainant and the resulting damages. From the evidence presented it is not clear whether the first load of tomatoes failed to ripen properly because of cold injury or some disease. If cold injury was the cause, it is not established that the chilling occurred prior to shipment, since it appears that the tomatoes could have been chilled in transit. Risk of loss for damage in transit falls on the buyer in an f.o.b. sale. We conclude that respondent has failed to sustain the burden of proving that the tomatoes did not meet contract requirements. We further conclude that respondent is indebted to complainant for the full purchase price of $1,065 for the two truckloads of tomatoes. Respondent's failure to pay complainant the purchase price of the tomatoes is in violation of section 2 of the act. Reparation should be awarded complainant in the amount of $1,065 with interest. In view of the above conclusion, the counterclaim should be dismissed. ORDER Within 30 days from the date of this order, respondent shall pay to complainant, as reparation, $1,065, with interest thereon at the rate of 5 percent per annum from March 1, 1964, until paid. The counterclaim is dismissed. Copies hereof shall be served upon the parties. Cite as 24 A.D. 1116 (No. 10,053) JACK T. BAILLIE CO. INC. v. DONALD FRUIT & PRODUCE. PACA Docket No. 9858. Decided August 20, 1965. Undisputed amount Decision by Thomas J. Flavin, Judicial Officer ORDER REQUIRING PAYMENT OF UNDISPUTED AMOUNT This is a reparation proceeding under the Perishable Agricultural Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.). A formal complaint was timely filed in which complainant seeks reparation of $1,434 against respondent in connection with transactions involving two trucklots of mixed vegetables in interstate commerce. A copy of the formal complaint was served upon respondent, which filed an answer thereto, admitting that it owed complainant $895 for one trucklot of mixed vegetables which it purchased and received from complainant. Respondent denies liability, however, with respect to the second trucklot allegedly purchased by it from complainant at an agreed price of $539. It is provided, in section 7(a) of the act (7 U.S.C. 499f), in part as follows: "*** If, after the respondent has filed his answer to the complaint, it appears therein that the respondent has admitted liability for a portion of the amount claimed in the complaint as damages, the Secretary *** may issue an order directing the respondent to pay to the complainant the undisputed amount on or before the date fixed in the order Accordingly, under authority of the statute quoted above, respondent shall pay to complainant, as an undisputed amount, $895. Payment in this amount shall be made within 30 days from the date of this order, with interest thereon at the rate of 5 percent per annum from November 1, 1964, until paid. Respondent's liability for the remaining disputed amount is 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 such undisputed amount had been issued. Copies of this order shall be served upon the parties. |