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CONCLUSIONS

By reason of the facts set forth in Finding of Fact 2 herein, respondent has wilfully violated section 312 (a) of the Act (7 U.S.C. 213 (a)) and section 201.55 of the regulations (9 CFR 201.55).

By reason of the facts set forth in Finding of Fact 3 herein, respondent has wilfully violated section 401 of the Act (7 U.S.C. 221) and section 201.46 of the regulations (9 CFR 201.46). Complainant has recommended that the order consented to by respondent be issued. The order will be issued.

ORDER

Respondent, in or in connection with the purchase or sale of livestock in commerce, shall cease and desist from making any false representations with respect to the price paid by respondent for such livestock or the weight of such livestock, or with respect to any other material fact involved in the transaction.

Respondent shall keep and maintain such accounts, records and memoranda as will fully and correctly disclose all transactions involved in his business under the Act, including accurate records of the number and weight of all livestock bought,sold, or otherwise disposed of each business day, the prices paid or received therefor, and the charges paid or received for services in connection therewith.

Respondent is suspended as a registrant under the Act for a period of 30 days from and after the effective date of this order.

This order shall become effective on the sixth day after service upon respondent. Copies hereof shall be served upon the parties.

Orders Issued by Thomas J. Flavin, Judicial Officer

DISMISSAL-MOTION OF PARTIES

(No. 9829)

In re JOHN TOTURA, JR. P&S Docket No. 3443. Dismissed May 20, 1965.

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DISMISSAL-SETTLEMENT BETWEEN PARTIES

(No. 9830)

FRANKLINTON STOCK YARDS, INC. v. M. L. ROACH AND W. H. NEWMAN. P&S Docket No. 3371. Dismissed May 4, 1965.

REPARATION AWARDED-DEFAULT ORDER

(No. 9831)

YEAGER & SULLIVAN, INC. v. GENE LIGHTMAN, INC. P&S Docket No. 3520. Reparation of $9,019 with 5 percent interest from January 1, 1965, awarded complainant against respondent in order issued May 13, 1965.

(No. 9832)

BODINE PRODUCE COMPANY v. MCDONNELL & BLANKFARD. PACA Docket No. 9523. Decided May 12, 1965.

Rejection without reasonable cause-Damages-Abnormal transportation service and conditions-Delay in diversion after rejection

Where shipment of lettuce not handled under normal transportation service and conditions, good delivery standards not applicable and respondent's rejection without reasonable cause, but respondent-buyer not chargeable for damages resulting from delay in diversion after rejection.

Mr. Paul G. Hunter, Bureau of Service, Glendale, Arizona, for complainant. 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 carload of lettuce in interstate commerce.

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A copy of the formal complaint and a copy of the Department's report of investigation were served on respondent and respondent filed an answer thereto. Although the damages claimed in the formal complaint exceed $1,500, the parties waived oral hearing. Accordingly, 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, respondent filed an answering statement, and complainant filed a statement in reply. Neither of the parties filed a brief.

FINDINGS OF FACT

1. Complainant, Bodine Produce Company, is a corporation whose address is P. O. Box 11366, Phoenix, Arizona.

2. Respondent is a partnership composed of Charles Austin McDonnell and James E. McDonnell, doing business as McDonnell & Blankfard, whose address is Pennsylvania Railroad Produce Terminal, Baltimore, Maryland. At the time of the transaction involved herein, respondent was licensed under the act.

3. On April 24, 1964, in the course of interstate commerce, complainant sold to respondent 1,000 cartons of Arizona lettuce, 2-dozen size, Mr. President brand, contained in car WFEX 7998, at an agreed price of $1.75 per carton, f.o.b. Phoenix, Arizona, plus 16¢ per carton cooling charge, or a total contract price of $1,910.

4. The contract between the parties was negotiated by a broker, Nat Spector & Son, of Phoenix, Arizona, which issued its confirmation of Sale No. 151 on or about April 24, 1964.

5. The lettuce in car WFEX 7998 was federally inspected at Phoenix, with the inspection beginning at 9:30 a.m. on April 24 and being completed at 6:45 p.m. of the same evening. As a result of that inspection, the lettuce in the car was certified as being 87% U.S. No. 1 quality, with permanent defects averaging 3%, consisting of 1% soft and 2% poorly trimmed heads, and with condition defects averaging 10%, including 8% tipburn. The inspector noted that there was "No decay" in the lettuce.

6. Car WFEX 7998 was billed out of Phoenix, Arizona, to respondent at Baltimore, Maryland, on the evening of April 24, 1964. Enroute to Baltimore, car WFEX 7998, a mechanically refrigerated car, was "shopped" at Columbus, Ohio, at 10:05 p.m. on April 28 on account of mechanical failure in the refrig

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eration unit. After a leak at the dryer had been repaired and eighteen pounds of Freon had been added to the cooling unit, the car was released from the shop at 3 a.m. on April 29, and proceeded to Baltimore, Maryland.

7. Car WFEX 7998 arrived in Baltimore on May 1, 1964. A Federal inspection was made of the shipment at 8:15 a.m. on that date at Baltimore, upon the application of respondent, with the results in relevant part as follows:

"Temperature of Product: At doorways, Bottom 41 Deg. F., Top 41 Deg. F.

66* *

"Quality: Fairly clean, fairly well trimmed, head leaves generally green color. Average 92% hard to firm, 7% fairly firm. Grade defects average 3% including 1% soft.

"Condition: Heads or portions of heads not affected by ribdiscoloration, decay or Tip Burn are fresh.

Wrapper leaves-No decay.

Head leaves-Average 2% Bacterial Soft Rot in early stages affecting 1 or 2 outer head leaves associated with Tip Burn. From 3 to 5 heads per carton, average 16% damage by rib-discoloration. Average 2% damage by Tip Burn.

"Grade: Meets quality requirements but fails to grade U.S. No. 1-92% hard to firm only account condition, now approximately 75% U.S. No. 1 quality 92% hard to firm. "Remarks: Inspection and certificate restricted to product and lading in upper 3 layers."

8. By telegram dispatched at 3:53 p.m. on May 1, 1964, respondent advised complainant that it (complainant) had failed to make good delivery on the contract and that respondent, therefore, was rejecting the shipment. In subsequent communications between the parties complainant refused to acquiesce to respondent's rejection and also refused to allow the shipment to be resold by respondent for complainant's account. Instead complainant issued a diversion order to the carrier at 4:10 p.m. on May 1, diverting the car to Jersey City, New Jersey, for resale.

9. The diversion order from complainant covering WFEX 7998 was received in the office of the carrier, the Pennsylvania

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Railroad Company, at 10:21 p.m. on May 1, 1964, but was inadvertently misplaced and was not discovered until the morning of May 4. The carrier then acted on the order and the car left Baltimore at 5 a.m. on May 5.

10. The shipment arrived in Jersey City, New Jersey, on or about May 6, 1964. On or about May 12, 1964, the carrier's agent at Jersey City dispatched the following wire to complainant:

"WFE 7998 LETTUCE ON HAND CONSIGNEE HAS NOT TAKEN DELIVERY RUSH DISPOSITION."

Complainant, subsequent to the receipt of this wire, abandoned the shipment to the carrier.

11. The air temperatures in car WFEX 7998 while in transit from Chicago, Illinois, to Jersey City, New Jersey, between the dates of April 27, 1964, and May 1, 1964, were as follows:

12. The formal complaint was filed on July 6, 1964, which was within 9 months after the cause of action herein accrued.

CONCLUSIONS

Respondent contends that its rejection of the shipment involved herein was justified on the ground that the lettuce failed to meet the good delivery standards for lettuce set forth in the Department's regulations, 7 CFR 46.44. Complainant, however, takes the position that this defense is not available to respondent, on the ground that the regulation is inapplicable under the facts of this case.

The regulation cited (supra) states, in part, that:

"Unless otherwise agreed to between the contracting parties, 'Good Delivery' in connection with f.o.b. contracts of purchase and sale means that the commodity meets the requirements of the contract at time of loading or sale and, if the shipment is handled under normal transportation