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Cite as 24 A.D. 1143

disposition of the cantaloupes, and realized net proceeds in the amount of $19.25. Deducting this sum from the contract price of $1,019.25, there is due complainant from respondent a balance of $1,000.

ORDER

Within 30 days from the date of this order, respondent shall pay to complainant, as reparation, $1,000, with interest thereon at the rate of 5 percent per annum from October 1, 1963, until paid.

The facts and circumstances as set forth herein shall be published.

Copies of this order shall be served upon the parties.

(No. 10,062)

BERT'S BEST, INC. v. WESTERN PRODUCE Co. PACA Docket No. 9687. Decided August 27, 1965.

Sale-Failure to prove-Dismissal

Complaint dismissed where complainant failed to sustain burden of proof of sale as evidence shows respondent acted promptly in objecting to alleged confirmation of sale and invoice and in refusing shipment upon arrival.

Complainant pro se.

Mr. LeRoy W. Gudgeon, Chicago, Ill., for respondent.

Miss Leonore 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 $575 in connection with a shipment of potatoes 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.

Cite as 24 A.D. 1143

Respondent filed an answer, denying the transaction and denying liability to complainant in any amount.

Since the amount involved herein does 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 and respondent filed an answering statement. Respondent also submitted a brief.

FINDINGS OF FACT

1. Complainant, Bert's Best, Inc., is a corporation whose address is P. O. Box 100, East Grand Forks, Minnesota.

2. Respondent is a partnership composed of Maurice Belson and Joseph Zelkin, doing business as Western Produce Co., whose address is 1 South Water Market, Chicago, Illinois. At the time of the transaction involved herein, respondent was licensed under the Act.

3. On or about September 15, 1964, complainant's sales manager, Higgins, and respondent's Zelkin engaged in a telephone conversation during which complainant offered to sell respondent a carload of U.S. No. 1, washed Norland potatoes, at a certain price, delivered Chicago.

4. On September 15, 1964, complainant issued a "Confirmation of Sale" indicating a sale to respondent of 500 100-pound sacks, N.S. No. 1, washed Norland potatoes, at $3.50 net delivered. A copy of this document was forwarded to respondent. On September 17, 1964, respondent wired complainant as follows: "RECEIVED CONFIRMATION LATE TODAY CAR OF POTATOES SORRY WE DID NOT HEAR FROM YOU ORDERED POTATOES ELSEWHERE."

5. On September 16, 1964, complainant shipped from the State of Minnesota, in interstate commerce, to respondent at Chicago, Illinois, 500 100-pound sacks of U.S. No. 1, washed round red potatoes.

6. On September 18, 1964, respondent received an invoice from complainant covering the potatoes referred to above. Respondent wrote on the face of the invoice the words, "WE DID NOT ORDER THIS CAR," and returned it to complainant by mail on the same date.

Cite as 24 A.D. 1143

7. Upon arrival of the shipment at Chicago, on or about September 22, 1964, respondent refused to accept the potatoes and returned the arrival notice to the carrier with a note stating, "We are returning this arrival notice to you as this car was not ordered by us and so it does not belong to us."

8. Upon being informed that respondent refused to accept the shipment complainant turned the potatoes over to W. J. Engel Company, at Chicago, for disposition. The 500 sacks of potatoes were sold by Engel for $1250, and net proceeds of $875 were remitted to complainant.

9. The formal complaint was filed on December 3, 1964, which was within 9 months after accrual of the alleged cause of action.

CONCLUSIONS

Complainant alleges that it sold respondent a carload of potatoes. Respondent denies that it purchased the carload of potatoes from complainant. The burden of proof rests upon complainant to establish by a preponderance of evidence the allegations of its complaint.

In support of its claim, complainant states that a sale was made and has shown that it issued a Confirmation of Sale, shipped the potatoes, and sent respondent an invoice for the alleged purchase price. All of these actions are consistent with complainant's position that it sold the potatoes in question to respondent.

Respondent has submitted in evidence an affidavit by respondent-partner Joseph Zelkin to the effect that complainant, through its sales manager Higgins, offered him a car of Minnesota Reds, U.S. No. 1, Size A, at $3.60 delivered Chicago; that Zelkin told Higgins he was not interested at that price; that Higgins said he would call Zelkin back that same day if he could get the car for $3.50 delivered; that Zelkin told Higgins he would make up his mind after he heard what complainant had to offer; that Higgins did not call again; and that the following day respondent purchased potatoes from another source.

During the Department's investigation prior to the filing of the formal complaint, Zelkin related to the investigator substantially the same facts set forth in his affidavit submitted as respondent's answering statement. The evidence shows that upon receipt of complainant's confirmation of sale, respondent returned it and wired complainant denying that it purchased the potatoes,

Cite as 24 A.D. 1146

and upon receipt of an invoice from complainant, respondent promptly returned it to complainant with a notation that respondent did not purchase the potatoes. Furthermore, upon arrival of the shipment, respondent refused to accept the potatoes and notified the carrier that the shipment did not belong to respondent. All of the respondent's actions in relation to the alleged transaction were consistent with its contention that it never agreed to purchase the potatoes in question.

On the basis of the evidence before us, we conclude that complainant has failed to sustain its burden of proving the contract as alleged. It follows that the complaint filed herein should be dismissed.

ORDER

The complaint is hereby dismissed.

Copies of this order shall be served upon the parties.

(No. 10,063)

NATIONAL PRODUCE DISTRIBUTORS, INC. v. H. JACOBS POTATO CO. PACA Docket No. 9638. Decided August 27, 1965.

Delivered sale-Date of shipment-Breach not established-
Acceptance-Liability

Having accepted shipment of potatoes in delivered sale and having failed to prove breach of contract by complainant as to date of shipment or quality of potatoes delivered respondent liable for balance of contract price.

Complainant and respondent 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 against respondent in connection with a transaction in interstate commerce involving a carload of potatoes.

Cite as 24 A.D. 1146

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 failed to file an answer to the formal complaint and was thereafter advised that he was deemed in default. Prior to the issuance of a default order, however, respondent moved that his default be set aside and that he be allowed to file an answer to the complaint. Respondent's motion was granted over complainant's objection, the default was set aside, and the answer submitted by respondent was accepted for filing.

Since the damages claimed in the formal complaint do not exceed $1,500, the evidence is submitted under the shortened procedure provided in the rules of practice (7 CFR 47.20). Pursuant to this procedure complainant filed an opening statement and respondent filed an answering statement. Complainant was given the opportunity to file a statement in reply but did not do so. Neither party filed a brief.

FINDINGS OF FACT

1. Complainant, National Produce Distributors, Inc., is a corporation whose address is 1425 South Western Avenue, Chicago, Illinois.

2. Respondent is an individual, Henry G. Jacobs, doing business as H. Jacob Potato Co., whose address is Mattituck, Long Island, New York. At the time of the transaction involved herein, respondent was licensed under the act.

3. On July 1, 1964, in the course of interstate commerce, complainant sold to respondent 540 100-pound sacks of California Long White potatoes, Golden Eagle brand, U.S. No. 1 grade, contained in car SFRD 17627, which was then on track in Chicago, Illinois. The potatoes had been billed out of Shafter, California, to Chicago, Illinois, on June 24, 1964, at which time they had been certified, after a Federal-State inspection, as being U.S. No. 1 grade, with no decay.

4. Complainant, on July 1, confirmed the sale to respondent by night letter, as follows:

"PER PHONE CONFIRMING YOURSELF OFF TRACK CHICAGO TOMORROW RD 17627 USONE GOLDEN EAGLE BRAND LONGWHITES $5.50 DELIVERED."

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