Cite as 24 A.D. 706 Complainant pro se. Mr. John B. Mowry, Mexico, New York, for respondent. 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 the sale of onions in contemplation of shipment in interstate commerce. Since the amount involved is less than $1,500 the issues are submitted under the shortened procedure provided in the rules of practice (7 CFR 47.20). A copy of the formal complaint was served on respondent, and a copy of the Department's report of investigation was served on each party. Respondent filed an answer, complainant filed additional affidavits, and respondent filed a brief. FINDINGS OF FACT 1. Complainant, Joe Coleman, is an individual who address is P.O. Box 485, Florida, New York. 2. Respondent, Kelly Jacobson, is an individual whose address is 64 West 9th Street, Oswego, New York. At the time of the transaction involved herein, respondent was licensed under the act. 3. Early in July 1963, contemplating shipment in interstate commerce, an oral contract for the sale of one truckload of U.S. No. 1 yellow onions at $2.40 per bag, f.o.b. Cedarville, New Jersey, was made between the parties herein, with complainant as buyer and respondent as seller. It was agreed that delivery would be made later when the onions were ready. 4. On or about July 17, 1963, respondent, by telephone, notified complainant that the onions were ready, that they must be loaded that day, and that the driver should call a given telephone number for instructions regarding the location of the pick-up point. Complainant agreed to take delivery in this manner. 5. Resale of these onions had previously been negotiated and the truck driver, acting for the ultimate purchaser, called for destination instructions and proceeded to a farm for loading. Cite as 24 A.D. 706 6. The onions were never loaded, and the truck returned empty. 7. In a night letter dated July 19, 1963, the complainant requested delivery of the onions on or before July 22, 1963. 8. No transfer of the onions was ever made to, or for, complainant. 9. The informal complaint was filed on January 6, 1964, which was within 9 months after accrual of the alleged cause of action herein. CONCLUSIONS There was a valid contract between complainant and respondent. The latter's contention that the Uniform Commercial Code, Section 2-201 renders this oral contract unenforceable is negated by subsection 3 (b) of the section cited, because the respondent's answer admits that a contract was made. In any event, statutes of frauds of like effect have been held not to preclude reparation under the Perishable Agricultural Commodities Act, Rothenberg v. H. Rothstein & Sons, 183 F. 2d 524. In order to be entitled to reparation in this proceeding, the complainant has the burden of proving, by a preponderance of the evidence, that respondent breached his contract. It is undisputed that the parties agreed for delivery to be made on July 17, 1963, into a truck provided by the buyer, at the onion field. The record contains no direct evidence that the buyer's truck ever reached the loading point, for no statement from the truck driver himself is presented. Complainant offers only indirect testimony stating that the truck driver was sent "to a farm to load." This testimony is insufficient to overcome respondent's sworn statement "that complainant did not appear or take delivery." We conclude that the complainant has failed to prove a violation of section 2 of the act. The complaint, therefore, should be dismissed. ORDER The complaint is dismissed. Copies hereof shall be served on the parties. Cite as 24 A.D. 709 (No. 9838) FLOYD WILCOX & SONS, INC. v. MAX V. HERBOLD. PACA Docket No. 9533. Decided May 19, 1965. Acceptance-By diversion-Liability-Suitable shipping condition- Having accepted potatoes by diverting the shipment, respondent liable for full contract price where breach of suitable shipping condition warranty not established. W. Lloyd Adams and Mary Smith, Rexburg, Idaho, for complainant. Creason & Creason, Rupert, Idaho, for respondent. 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 potatoes 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 and respondent filed an answering statement. Neither party submitted a brief. FINDINGS OF FACT 1. Complainant, Floyd Wilcox & Sons, Inc., is a corporation whose address is Thornton, Idaho. 2. Respondent is an individual, Max Victor Herbold, doing business as Max V. Herbold, whose address is P.O. Box 67, Rupert, Idaho. At the time of the transaction involved herein, respondent was licensed under the Act. 3. On or about October 18, 1963, contemplating shipment in interstate commerce, complainant by oral contract sold to respondent a carload of U.S. No. 1 Idaho washed Russet potatoes, Cite as 24 A.D. 709 2-inch or 4-ounce minimum, containing 450 100-pound sacks at $2 per sack, f.o.b. Thornton, Idaho. 4. On October 18, 1963, complainant shipped in car PFE 3430 from Thornton, Idaho, to respondent at Pocatello, Idaho, 450 sacks of potatoes meeting contract requirements. 5. Before the carload of potatoes arrived at Pocatello, Idaho, respondent diverted it to Feldman Fruit Company at Chicago, Illinois. The car arrived at Chicago on October 22, 1963, and the shipment was rejected by Feldman Fruit Company. 6. On or about October 23, 1963, respondent diverted the potatoes in car PFE 3430 to Indianapolis, Indiana, where the shipment was reconditioned by Harmon Pre-Pack Co., Inc., and the potatoes were sold by that company which remitted to respondent the net proceeds realized from the sale. 7. Respondent tendered to complainant a check for $514.65, which complainant refused to accept. Respondent has paid complainant nothing in connection with this transaction. 8. The formal complaint was filed on June 11, 1964, which was within 9 months after accrual of the cause of action herein. CONCLUSIONS It appears to be respondent's position that the potatoes shipped by complainant were not in suitable shipping condition, and that they failed to meet contract requirements. The burden of proof rests upon respondent to establish this affirmative defense. This was an f.o.b. contract calling for U.S. No. 1 potatoes at shipping point. A Federal inspection of the potatoes on October 17 and 18, 1963, showed the potatoes graded U.S. No. 1, Size A, 2-inch or 4-ounce minimum, at time and place of shipment, and that the potatoes were slightly skinned and grade defects averaged within tolerance. Further, complainant warranted, under the f.o.b. contract, that the potatoes were in a condition which, if transported under normal transportation service and conditions, would assure delivery without abnormal deterioration at the destination specified in the contract. The shipment was originally billed to Pocatello, Idaho. Respondent urges that complainant knew the potatoes would not be sold in Pocatello, which was only a diversion point, and complainant concedes that the car was to go to Chicago. For purposes of this decision we consider Chicago as the contract destin Cite as 24 A.D. 709 ation. After diversion by respondent, the shipment proceeded directly to Chicago, where it arrived on October 22, the fourth morning after shipment. There is no evidence to show with any degree of certainty the condition of the potatoes upon arrival at that point. Respondent's evidence is to the effect that the potatoes were rejected by his customer at Chicago because, upon opening the car, the customer observed "numerous wet spots and decay." Thereafter, respondent diverted the shipment to Indianapolis, Indiana, and on October 28, 1963, the potatoes were inspected at Indianapolis by the Railroad Perishable Inspection Agency, which reported the following: "Generally good quality. Good color, sandy. Skins tight, few feathered. Few show minor field marks and scars. Firm and crisp. Fresh and clean. Well formed and shaped, few misshapen. Less than 1% Soft Rot decay." A followup inspection by the RPIA three days later showed 6 to 8%, average 6% Soft Rot decay. A Federal inspection of the potatoes was made on October 30, 1963, at Indianapolis, the report of which showed the following as to quality, condition, and grade: "Quality: Mature, clean to fairly clean, well to fairly well shaped. Grade defects average 5%, mostly cuts or misshapen. "Condition: Generally firm. From 2 to 8%, average 4% damage by sunken disclored areas; most samples 1 to 4%, many 5 to 8%, average 4% Slimy Soft Rot, mostly in advanced, many in early stages. "Grade: Meets quality requirements but fails to grade U.S. No. 1 Size A, 2 inch or 4 ounce minimum, only account condition." For lack of evidence of the condition of the potatoes at Chicago, and taking into consideration the inspection report of the RPIA on October 28, showing less than 1% Soft Rot, and the Federal inspection which was not made until 12 days after shipment, we conclude that respondent has failed to establish that the potatoes delivered by complainant were not in suitable shipping condition. Respondent contends that the potatoes were not in good condition upon arrival at Chicago, and in this connection places considerable reliance upon the broker's Confirmation of Purchase, a copy of which is attached to the broker's affidavit submitted as a part of respondent's answering statement. As a part of the |