Cite as 24 A.D. 1155

plainant concerning the matter, and to pay over to complainant the net proceeds after deducting the necessary expenses paid by respondent in selling the lettuce. Klein v. Ruark, 15 A.D. 510. Respondent, however, failed to do any of these things, in breach of the contract between the parties. Respondent, as its defense, takes the position that the breach is not actionable and that its non-performance was excused, since it exerted its best efforts to sell the lettuce but was unable to do so.

We do not think that respondent's position is supported by the evidence, for respondent has failed to show that it acted promptly in attempting to dispose of the lettuce after the arrival of car PFE 301467 in Philadelphia. While it is undisputed that the shipment was available for the market of Wednesday, May 27, respondent's first efforts to resell-as far as the record showscame on Monday, June 1, when it removed some of the cartons from the car to show as samples. Nothing in the record, however, shows that any attempts were made by respondent to dispose of the lettuce during the 5-day period beginning May 27, when the lettuce was first available for sale, and June 1, when the first samples were pulled for display.1 We conclude from the evidence, therefore, that respondent failed to act promptly in attempting to dispose of the lettuce, in violation of section 2 of the act.

Respondent is liable to complainant for the net proceeds that should have been realized upon a prompt and proper sale of the lettuce. Klein v. Ruark, (supra). Recognizing that respondent might not have been able to sell all of the lettuce on May 27, 1964, which was the first day that it was available for market, we consider that respondent certainly should have been able to make disposition during the period May 27-May 29.

The market news report for Wednesday, May 27, quoted sales of Arizona lettuce, Iceberg type, in 2-dozen size cartons, in less than carload lots and on stocks of good merchantable quality and condition, at $3.25 to $3.50 per carton. Most supplies were described as "poorer," however, and were quoted at $2.25 to $3.00 per carton. The market news report for May 28 quoted sales of Arizona Iceberg lettuce, 2-dozen size, mostly fair quality and con

1 Even if we assume that respondent was attempting to sell the lettuce during this 5-day period, it failed in its duty of keeping complainant informed of its progress and of its inability to make satisfactory disposition. The failure of a consignee to keep its consignor fully informed of developments in connection with a consignment transaction constitutes a breach of duty by the agent to his principal, and the agent is liable for any loss resulting therefrom. Cohen Company v.Schley Brothers, 6 A.D. 830.

Cite as 24 A.D. 1159

dition, in less than carlot quantity, at $2.75 to $3.00 per carton, with most sales being at $3.00. Lettuce of ordinary condition was quoted at $2.25 to $2.50 per carton. The market news report for May 29 quoted Arizona Iceberg lettuce of good merchantable quality and condition, in less than carlot quantity, as selling at $2.50 to $2.75 per 2-dozen size carton, while lettuce of ordinary to fair quality and condition was selling at $2.00 to $2.25 per carton.

We think the lettuce involved herein could be characterized as being in fair condition on arrival in Philadelphia. Since the market reports are based on sales of less than carlot quantities, however, we consider that the lowest of the prices within the quoted range will more accurately reflect the market value of the carload of lettuce with which we are dealing here. Accordingly, we will take the lowest of the prices quoted in the market news report for lettuce of fair quality and condition on each of the three days involved herein, and will then take an average of these prices, as follows: May 27, $2.25; May 28, $2.75; and May 29, $2.00; or an average price of $2.33 per carton. Multiplying the 1,000 cartons in this shipment by this figure gives us $2,330. Expenses to be subtracted from this amount are as follows: freight, $1,246.62; terminal charges, $60.00; inspection fee, $3.00; and commission, $233.00. This totals $1,542.62 and when subtracted from the market value of the lettuce at Philadelphia, $2,330.00, leaves $787.38 due and owing complainant from respondent in connection with this transaction. Reparation should be awarded to complainant in ths amount, with interest.

ORDER

Within 30 days from the date of this order, respondent shall pay to complainant, as reparation, $787.38, with interest thereon at the rate of 5 cents per annum from July 1, 1964, until paid. Copies of this order shall be served upon the parties.

Orders issued by Thomas J. Flavin, Judicial Officer

DISMISSAL ON MOTION OF COMPLAINANT

(No. 10,066)

KAISER BROTHERS PRODUCE, INC. v. S. ALBERTSON COMPANY, INC. PACA Docket No. 9388. Dismssed August 20, 1965.

Cite as 24 A.D. 1160

REPARATION AWARDED-DEFAULT ORDER

(No. 10,067)

COLUMBIA ICE & COLD STORAGE Co., d/b/a CEDERGREEN FOODS v. CY LONG SALES CO. PACA Docket No. 9853. Reparation of $1,916.91 with 5 percent interest from November 1, 1964, awarded complainant against respondent in order issued August 3, 1965.

(No. 10,068)

CAITO & SONS v. WERNER'S PRODUCE Co. PACA Docket No. 9852. Reparation of $250 with 5 percent interest from November 1, 1964, awarded complainant against respondent in order issued August 3, 1965.

(No. 10,066)

BRUCE CHURCH, INC. v. STANDARD FRUIT & PRODUCE COMPANY. PACA Docket No. 9848. Reparation of $1,285.14 with 5 percent interest from February 1, 1965, awarded complainant against respondent in order issued August 5, 1965.

(No. 10,070)

TROPICANA IMPORTING COMPANY, INC. v. GEORGIA-TENNESSEE PRODUCE CO., INC. PACA Docket No. 9667. Reparation of $9,551.53 with 5 percent interest from June 1, 1964, awarded complainant against respondent in order issued August 9, 1965.

(No. 10,071)

JOHN W. JAGGERS, INC. v. M. COSTANZI COMPANY AND/OR M. COSTANZI CO., INC. PACA Docket No. 9850. Reparation of $4,691.50 with 5 percent interest from January 1, 1965, awarded complainant against respondents in order issued August 9, 1965.

(No. 10,072)

PERRINE TOMATO GROWERS v. MARCO FERRANTE. PACA Docket No. 9851. Reparation of $1,425 with 5 percent interest from March 1, 1965, awarded complainant against respondent in order issued August 10, 1965.

Cite as 24 A.D. 1161

(No. 10,073)

WEST INDIES FRUIT COMPANY v. NUCKOLIS BANANA Co. PACA Docket No. 9855. Reparation of $1,250 with 5 percent interest from December 1, 1964, awarded complainant against respondent in order issued August 10, 1965.

(No. 10,074)

LEE WONG FARMS, INC. v. ANTON, INC. PACA Docket No. 9857. Reparation of $700 with 5 percent interest from December 1, 1964, awarded complainant against respondent in order issued August 17, 1965.

(No. 10,075)

PACIFIC COAST FRUIT DISTRIBUTORS, INC. v. EDDIE ITULE BROKERAGE CO. PACA Docket No. 9864. Reparation of $1,374 with 5 percent interest from September 1, 1964, awarded complainant against respondent in order issued August 17, 1965.

(No. 10,076)

SUN GLO PRODUCERS, INC. v. WORLD WIDE PRODUCE, INC. PACA Docket No. 9866. Reparation of $1,728.24 with 5 percent interest from November 1, 1964, awarded complainant against respondent in order issued August 17, 1965.

(No. 10,077)

V. B. HOOK & CO. INC. v. BULLARD PRODUCE CO. PACA Docket No. 9863. Reparation of $2,483.25 with 5 percent interest from March 1, 1965, awarded complainant against respondent in order issued August 17, 1965.

(No. 10,078)

GROVELAND FRUIT CO. INC. v. HUDDLESTON BROS. FRUIT CO. INC. PACA Docket No. 9872. Reparation of $956 with 5 percent interest from April 1, 1965, awarded complainant against respondent in order issued August 18, 1965.

Cite as 24 A.D. 1162

(No. 10,079)

LA. STRAWBERRY & VEGETABLE DISTRIBUTING CO. INC. v. DIXIE PRODUCE CO. PACA Docket No. 9869. Reparation of $163.50 with 5 percent interest from March 1, 1965, awarded complainant against respondent in order issued August 18, 1965.

(No. 10,080)

LA. STRAWBERRY & VEGETABLE DISTRIBUTING CO. INC. v. DIXIE PRODUCE CO. PACA Docket No. 9870. Reparation of $715.70 with 5 percent interest from March 1, 1965, awarded complainant against respondent in order issued August 18, 1965.

(No. 10,081)

M. J. DUER & CO. INC. v. CAITO PRODUCE CO. PACA Docket No. 9871. Reparation of $551.25 with 5 percent interest from December 1, 1964, awarded complainant against respondent in order issued August 18, 1965.

(No. 10,082)

VALLEY FRUIT AND VEGETABLE CO. INC. v. DIXIE PRODUCE Co. PACA Docket No. 9868. Reparation of $361.80 with 5 percent interest from February 1, 1965, awarded complainant against respondent in order issued August 18, 1965.

(No. 10,083)

HOOSIER POTATO CO. INC. v. WERNER'S PRODUCE CO. PACA Docket No. 9865. Reparation of $277.50 with 5 percent interest from November 1, 1964, awarded complainant against respondent in order issued August 18, 1965.

(No. 10,084)

INDIAN TRAIL PRODUCE SHIPPERS, INC. v. A. MEZVINSKY STORES, INC. PACA Docket No. 9867. Reparation of $396.84 with 5 percent interest from March 1, 1965, awarded complainant against respondent in order issued August 19, 1965.