Cite as 24 A.D. 587 This order shall become effective on June 1, 1965, and remain in effect to and including May 31, 1966, unless modified or extended by further order before the latter date. Copies hereof shall be served upon the parties. (No. 9814) BILL PACK AND COTTON JORDON v. CHARLIE ROUSE. P&S Docket No. 3345. Decided May 12, 1965. Misrepresentation-Rejection-Damages-Resale value Where respondent failed to prove that animals did not conform to representations, damages resulting from rejection are awarded on basis of seller's claim, the difference between his cost and the resale price plus resale expenses and transportation charges. Mr. William S. Thornton, Bryan, Texas, for complainant Bill Pack. Complainant Cotton Jordon pro se. Respondent pro se. Miss Eva S. Reifenberg, Presiding Officer. Decision by Thomas J. Flavin, Judicial Officer PRELIMINARY STATEMENT This is a reparation proceeding under the Packers and Stockyards Act, 1921, as amended (7 U.S.C. 181 et seq.), hereinafter referred to as the Act. In a complaint filed on April 15, 1964, reparation is sought in the sum of $967.10. It is alleged in the complaint that respondent agreed to buy 133 head of cattle from complainant Bill Pack; that complainant Cotton Jordon trucked the cattle from Bryan, Texas, to Limon, Colorado; that the cattle were "turned down" by respondent; that complainant Bill Pack arranged to have the cattle resold; that said complainant incurred a loss in connection with the resale; and that complainant Cotton Jordon has not been paid the $497 owed to him with regard to the trucking of the cattle. A copy of the complaint and a copy of the investigative report, prepared by the Packers and Stockyards Division of the Department and filed in the proceeding pursuant to section 202.40 of the rules of practice (9 CFR 202.40), were served upon respondent on May 29, 1964. Copies of the investigative report were served upon complainant Jordon on June 2, 1964, and upon complainant Pack on June 1, 1964. Cite as 24 A.D. 587 Respondent filed an answer denying liability to complainants and alleging inter alia that he refused to accept the cattle because they were not as represented and, in addition, the invoice price was higher than the price previously quoted by complainant Pack. Included in the answer was a counterclaim "in the amount of $1.50 per head for handling and selling said cattle." Respondent also requested an oral hearing which request was thereafter withdrawn by him. The proceeding was handled under the shortened procedure provided for in sections 202.17 and 202.53 of the rules of practice (9 CFR 202.17, 202.53). Complainant Pack filed an opening statement of facts. No statement was filed by complainant Jordon or by respondent. FINDINGS OF FACT 1. Complainants, Bill Pack and Cotton Jordon, are individuals whose address is 2714 Maloney Street, Bryan, Texas. At all times material herein, complainant Pack was registered under the Act with the Secretary of Agriculture as a market agency. 2. Respondent Charlie Rouse, Limon, Colorado, is an individual who at all times material herein was registered under the Act with the Secretary of Agriculture as a market agency and dealer doing business as Limon Livestock Sales Company, Limon, Colorado. 3. On or about March 16, 1964, respondent agreed to purchase some steers and bull calves from complainant Bill Pack. It was further agreed that said complainant was to draw a draft on respondent in the amount of the purchase price. The cattle were trucked by complainant Cotton Jordon from Bryan, Texas, to Limon, Colorado. Thereafter, complainant Pack was advised by his bank that the draft had not been paid and that the cattle had been rejected. Thereupon, a representative of complainant Pack went to Limon and made arrangements for the resale of the cattle. The animals were resold at the Limon Livestock Sales Company stockyard for the highest price obtainable. 4. Under the contract, respondent was to pay $12,155.48 for the animals to complainant Pack and a trucking expense of $497 to the trucker. The animals were resold for $11,802.38. In connection with the resale, complainant Pack incurred an expense of Cite as 24 A.D. 587 5. The complaint was filed within 90 days of the accrual of the causes of action. CONCLUSIONS The record shows that respondent agreed to purchase certain livestock in commerce from complainant Pack; and thereafter refused to accept the animals and to pay for them, and also refused to pay the trucker who transported the animals. A failure to pay in connection with a purchase of livestock in commerce constitutes an unjust practice in violation of the Act unless the failure is justified. Hunt v. Stephenson, 22 A.D. 1102 (1963). Cf. Daubert v. Fowler Auction Co., 20 A.D. 92 (1961). Respondent seeks to justify his rejection of the animals on the grounds that complainant Pack misrepresented the animals to him; and that the price on the invoice accompanying the animals was higher than the price previously quoted by said complainant. Respondent further asserts that the freight demanded was also higher than initially quoted to respondent. Respondent has introduced no evidence to establish that the animals delivered did not conform to the representations made by complainant Pack. The burden of establishing such misrepresentation was on respondent. John A. Johnson & Sons, Inc. v. United States to Use of Baltimore Brick Co., 153 Fed. 2d 534 (1946); Newcomb v. York Ice Machinery Corp., 68 Fed. 2d 314 (1934). See also, Altsheler v. Heber, 23 A.D. 1507 (1964). On the basis of the record it is found that the agreed purchase price was $12,155.48, and the agreed freight charge, $497; and it is concluded that there was no justification for respondent's failure to pay the agreed sums. The generally accepted measure of the seller's damages in cases such as the instant proceeding, is the difference between the contract price and the market price at the time of the rejection of the goods by the purchaser, together with incidental damages. Where as here there is a resale as quickly as practicable and at the highest price obtainable, the resale price may be considered as the market price at the time of rejection, and the expense incurred in connection with the resale may be recovered by the seller as incidental damages. Duesbury v. Moog & Greenwald, 3 A.D. 871 (1944). Cf. Kirby & Little Packing Co. v. United Fruit & Produce, 16 A.D. 1066, 1071 (1957); Bushwick Commission Co. v. National Produce Co., 19 A.D. 36, 42 (1960). Accordingly, claim might have been made by complainants against respondent for the freight charge and the Cite as 24 A.D. 590 difference between the contract price and the price for which the animals were resold, together with the expense incurred in connection with the resale, a total of $1,100.10. In this proceeding, reparation is sought in the amount of $967.10 on the basis of the freight charge and the difference between the cost of the animals to respondent Pack and the price for which they were resold, plus the expense incurred in connection with the resale. From all of the foregoing it is determined that complainants are entitled to at least the relief sought by them; and respondent will be ordered to pay as reparation, to complainant Jordon, the amount of the agreed upon freight charge, and to complainant Pack the sum of $470.10. Respondent's counterclaim will be dismissed as there is no support in the record for the relief sought by him. ORDER Within 30 days from the date of this order, respondent shall pay to complainant Pack the sum of $470.10 with interest thereon at the rate of 5% per annum from April 1, 1964, until paid. Within 30 days from the date of this order, respondent shall pay to complainant Jordon the sum of $497 with interest thereon at the rate of 5% per annum from April 1, 1964, until paid. Respondent's counterclaim is hereby dismissed. Copies hereof shall be served upon the parties. (No. 9815) In re RUSSELL WELLING. P&S Docket No. 3419. Decided May 12, 1965. Bonding requirements-Failure to pay when due-Checks-Records— Insolvency-Suspension of registration-Default Respondent is ordered to cease and desist from engaging in business under the act without the required bond, failing to pay when due for purchased livestock and issuing insufficient funds checks in payment of such livestock, is ordered to keep records that fully disclose all transactions in his business under the act and is suspended as a registrant for a period of 30 days and thereafter until no longer insolvent. Mr. Garrett N. Wyss for complainant. Mr. Will Rogers, Hearing Examiner. Decision by Thomas J. Flavin, Judicial Officer Cite as 24 A.D. 590 DECISION AND ORDER The recommended decision and order of the hearing examiner filed April 15, 1965, to which respondent did not file exceptions, are adopted as the final decision and order in this proceeding. This order shall become effective on the 10th day after service thereof upon respondent and copies hereof shall be served upon the parties. HEARING EXAMINER'S RECOMMENDED DECISION AND ORDER PRELIMINARY STATEMENT This is a disciplinary proceeding under the Packers and Stockyards Act, 1921, as amended and supplemented (7 U.S.C. et seq.), hereinafter referred to as the act, instituted by a complaint filed on November 20, 1964, by the Director, Packers and Stockyards Division, Agricultural Marketing Service, United States Department of Agriculture, charging that the respondent's financial condition does not meet the requirements of the act (7 U.S.C. 204) and that the respondent has willfully violated sections 312 and 401 of the act (7 U.S.C. 213, 221) and sections 201.29, 201.30 and 201.43 of the regulations issued thereunder (9 CFR 201.29, 201.30 and 201.43). A copy of the complaint and a copy of the rules of practice were served upon the respondent on January 4, 1965. At the time of service of the complaint, respondent was notified in writing that an answer thereto should be filed within 20 days after such service and that, in accordance with section 202.9 of the rules of practice (9 CFR 202.9), failure to file an answer would constitute an admission of the facts alleged in the complaint, and, in effect a waiver of oral hearing. Notwithstanding such notice, the respondent has not filed an answer. The matter was referred to Will Rogers, Hearing Examiner, Office of Hearing Examiner, United States Department of Agriculture, for the preparation of a report without further investigation or hearing pursuant to section 202.9 (c) of the rules of practice. FINDINGS OF FACT 1. Respondent, an individual residing at Given, West Virginia, is now and was at all times material herein engaged in the business of buying and selling in commerce livestock on his own account and is now and was at all times material herein so registered with the Secretary of Agriculture. |