Cite as 24 A.D. 638 service and conditions, will meet the following additional requirements on delivery at the contract destination:" (emphasis ours). Complainant draws our attention to the fact that car WFEX 7998 was delayed one day in transit while the refrigeration equipment was being repaired in Columbus, Ohio. Complainant urges the conclusion that this delay constituted abnormal transportation service and conditions, rendering the good delivery standards inapplicable herein. Respondent, however, points to the fact that the temperatures in the car were maintained at the desired levels at all times (Finding of Fact No. 11), despite the delay and the repair work that was needed on the refrigeration unit of the car, and in effect argues that the delay played no part in, and was not a contributing factor to, the deterioration found in the lettuce at contract destination. We are satisfied that car WFEX 7998 was not handled under normal transportation service and conditions, and conclude that the good delivery standards pertaining to lettuce and set forth in the regulations, as cited, are inapplicable under the circumstances of this case. While we cannot say to what extent the delay enroute contributed to the deterioration found at destination, we are not prepared to say that such delay had no material effect, especially in view of the rise in temperatures in the car at Columbus on April 28. Amatore Di Gioia v. F. Dino & Sons, 22 A.D. 1038. In view of the foregoing, we find that respondent's rejection of the carload of lettuce involved herein was without reasonable cause, in breach of the contract between the parties and in violation of section 2 of the act. It should be noted, however, that damages resulting from the carrier's delay in diverting the car from Baltimore to Jersey City (Finding of Fact No. 9) are not chargeable to respondent, for the delay occured after respondent's rejection and while the car was in possession and control of the carrier, complainant's agent. Accordingly, complainant must look to the carrier for any damages stemming from the delay caused by the carrier's failure to accomplish a prompt diversion. The measure of damages applicable to respondent's breach is the difference between the f.o.b. price of the lettuce plus freight charges to Baltimore, and the market value of the lettuce at Baltimore on May 1, 1964, when the breach occurred. The only evi Cite as 24 A.D. 638 dence we have as to the market value of the subject lettuce at Baltimore is the Federal Market News Service Reports for Baltimore. In this connection, however, it should be noted that the shipment was rejected by respondent at approximately 4 p.m. on Friday, May 1, or at a time when activity in the terminal market for that day normally would have ceased. Accordingly, we think that the prices for comparable lettuce quoted in the market news reports for Baltimore for the next regular market day, Monday, May 4, should also be considered in conjunction with Friday's market news report in arriving at the value of the subject lettuce. The Market News Service Reports for May 1 quote prices on Arizona lettuce, 2-dozen size, in less than carlot quantities and on stock of generally good merchantable quality and condition, as ranging from $2.25 to $2.75 per carton. Lettuce of poorer quality is quoted at $2.00 per carton. The Market News Service Reports for May 4 quote prices on Arizona lettuce, 2-dozen size, in less than carlot quantities and on stock of generally good merchantable quality and condition as ranging from $2.00 to $2.50 per carton, mostly $2.00 to $2.25, with a few as low as $1.75. Lettuce of fair quality and condition is quoted at $1.00 to $1.50 per carton. The Federal inspection at Baltimore on May 1 revealed an average of 20% condition defects in the lettuce, and would have sold on the market at a price for fair quality and condition. Referring back to the market news reports for May 1 we note that lettuce of this type was quoted at $2.00 per carton, while similar lettuce on May 4 was quoted at $1.00 to $1.50 per carton. Considering the fact that the market was declining over the weekend, and considering also the results of the Federal inspection of May 1, we are of the opinion that the lettuce in car WFEX 7998 was worth no more than $1.25 per carton at the time of rejection, and it is so concluded. Multiplying the 1,000 cartons contained in the car by the $1.25 per carton figure that we have arrived at, gives us $1,250 as the market value in Baltimore of the lettuce in car WFEX 7998. Substracting this figure, $1,250, from the total of the f.o.b. contract price, plus freight charges, $2,960.67, leaves $1,710.67, which is the amount of damages to which complainant is entitled as the result of respondent's breach. An order of reparation in this amount should be issued to complainant against respondent, with interest. Cite as 24 A.D. 644 ORDER Within 30 days from the date of this order, respondent shall pay to complainant, as reparation, $1,710.67, with interest thereon at the rate of 5 percent per annum from June 1, 1964, until paid. Copies of this order shall be served on the parties. (No. 9833) GROWERS EXCHANGE, INC. v. NEIMAN BROS. PACA Docket No. 9568. Decided May 12, 1965. Weight specifications-Lettuce Good delivery standards Acceptance-Liability Where weight of 64 cartons of lettuce not representative of carload of 704, evidence is insufficient to establish that lettuce did not meet weight specifications of contract. Having accepted the carload, which met good delivery standards upon arrival, respondent liable for contract price. Mr. T. C. Curry, Bureau of Service, Grower-Shipper Vegetable Association of Central California, Salinas Calif., for complainant. Respondent pro se. Miss Lenore 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 connection with a transaction involving a shipment of lettuce in interstate commerce. A copy of the formal complaint and a copy of the Department's report of investigation were served upon respondent and respondent filed an answer. Since the amount involved 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, respondent filed an answering statement, and complainant filed a statement in reply. Both parties filed briefs. Cite as 24 A.D. 644 FINDINGS OF FACT 1. Complainant, Growers Exchange, Inc., is a corporation whose address is P. O. Box 1461, Salinas, California. 2. Respondent is an individual, Herbert William Neiman, doing business as Neiman Bros., whose address is 204 Miller Street, Newark, New Jersey. At the time of the transaction involved herein, respondent was licensed under the Act. 3. On or about February 19, 1964, in the course of interstate commerce and by oral contract, complainant sold to respondent 704 cartons, Amigo brand, 2-dozen size lettuce, at an agreed price of $3 per carton, plus cooling, for a total contract price of $2,226.64, f.o.b. El Centro, California. The contract was negotiated by B. W. Brown, a broker at Salinas, California. 4. Complainant shipped on February 19, 1964, from El Centro, California, to respondent at Newark, New Jersey, in car PFE 2402, 704 cartons of lettuce to be applied to the contract referred to in Finding of Fact 3. 5. Upon arrival of the lettuce at destination, respondent accepted the shipment and subsequently paid complainant $1,298.90, or $927.74 less than the contract price. 6. The formal complaint was filed on July 6, 1964, which was within 9 months after accrual of the cause of action herein. CONCLUSIONS Respondent contends that the lettuce did not meet contract requirements as to weight. The Memorandum of Purchase and Sale issued by the broker at the time the contract was negotiated specified "weight average 43 lbs. or more." Respondent stated that during the unloading process he noticed that the cartons seemed to be light in weight, and that he reported this to the broker, who instructed respondent to have a Government inspection as to weight. An official inspection, restricted to weight and condition, was made on March 3, 1964, at 9:50 a.m. This inspection covered 64 cartons of the load remaining, which were stacked in respondent's warehouse. The report of this inspection does not disclose how many samples were examined, but those weighed ranged from 33 to 37 pounds, average 342 pounds net weight. Respondent's evidence is insufficient to establish that the carload of lettuce did not meet contract requirements as to weight. The broker's explanation of the statement, "weight average 43 Cite as 24 A.D. 644 lbs. or more," contained in the Memorandum of Purchase and Sale is that this term meant the lettuce cartons had a gross weight of 43 lbs. or more. before cooling. The Government inspection of March 3, 1964, indicated an average of 342 lbs. net weight of the samples weighed. With only 64 cartons of the load remaining available for inspection as to weight, this evidence can hardly be said to be representative of the carload containing 704 cartons. Respondent also contends that the lettuce arrived in "poor condition." Respondent states that the lettuce arrived at approximately 10:30 p.m., February 25, 1964; that on February 26, the National Inspection Service inspected the lettuce and advised respondent of its poor condition; that the following day (February 27) respondent contacted his broker and reported the condition of the lettuce; that respondent believes the broker contacted the shipper; that the broker advised respondent to obtain a Government inspection; and that a Government inspection of the lettuce was made the following day, February 28. Respondent did not submit an inspection report or statement by the National Inspection Service. The Federal inspection made February 28 at 1:45 p.m. disclosed the following as to condition of the lettuce: "Heads or portion of heads not affected by condition factors are fresh and crisp. From 2 to 6 heads damage by blistering and peeling of the epidermis following freezing damage, average 13%, scattered throughout pack and load. No decay." The contract in this case did not specify a U.S. grade or percentage of condition defects. Complainant was required only to deliver to respondent lettuce meeting the Good Delivery Standards set forth in Section 46.44 of the Regulations issued pursuant to the Act. Under this section, the lettuce at destination could contain a maximum of 15%, by count, of the heads in any lot which were damaged by condition defects, including therein not more than 9% serious damage of which not more than 5% may be decay affecting any portion of the head exclusive of wrapper leaves. Although there is no specific evidence of the condition of the lettuce on arrival at destination, the Government inspection made three days after arrival shows total condition factors of only 13%, and no decay. It is clear from this that the lettuce met the Good Delivery Standards upon arrival, which is all that was required of the shipper. |