Cite as 24 A.D. 712 printed form, there appears this statement, "All commodities guaranteed sound condition on arrival." Accepting this term as a part of the contract between the parties, respondent has the burden of proving that the potatoes did not arrive at Chicago in sound condition. As we have previously pointed out, respondent has submitted no evidence to establish the percentage of condition defects in the potatoes upon arrival at that point. The Federal and the RPIA inspections at Indianapolis are too remote in time to constitute acceptable evidence of the condition of potatoes at Chicago. We must conclude, therefore, that respondent has failed to establish that the potatoes shipped by complainant did not arrive in sound condition at Chicago. Respondent accepted the potatoes by diverting the shipment. He, therefore, became liable for the contract price thereof, subject to any damages he can show were sustained as a result of any breach of the contract on the part of complainant. Respondent's evidence is wholly inadequate to establish any breach on complainant's part. Having failed to establish a breach by complainant, with resulting damages, respondent is liable for the full contract price of the potatoes, or $900. His failure to pay that amount to complainant is in violation of Section 2 of the Act. Complainant should be awarded reparation in the sum of $900, with interest. ORDER Within 30 days from the date of this decision, respondent shall pay to complainant, as reparation, $900, with interest at the rate of 5 percent per annum from December 1, 1963, until paid. The facts and circumstances as set forth herein shall be published. Copies of this order shall be served upon the parties. (No. 9839) C. H. ROBINSON, INC. v. SIERRA PACKING CO., INC. PACA No. 9534. Decided May 20, 1965. Joint venture-Liability of joint venturer As both parties to joint venture jointly and severally liable, respondent joint venturer is liable for overpayment. Cite as 24 A.D. 712 Moore & Wangaard, Minneapolis, Minn., 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 shipment of watermelons in interstate commerce. A copy of the formal complaint was served on respondent and a copy of the Department's report of investigation was served on both parties. Respondent filed an answer. Since the amount involved does not exceed $1,500, the issues are submitted under the shortened procedure provided in the rules of practice (7 CFR 47.20). Pursuant to such procedure, each party was given an opportunity to present further evidence. Respondent filed an unverified statement with documents attached. FINDINGS OF FACT 1. Complainant, C. H. Robinson, Inc., is a corporation whose principal place of business is 3385 Gorham Avenue, Minneapolis, Minnesota. 2. Respondent, Sierra Packing Co., Inc., is a corporation whose address is 1701 Miller, Mission, Texas. At the time of the transaction involved herein, respondent was licensed under the act. 3. On or about May 23, 1963 complainant, as broker, negotiated the sale of a truckload of watermelons at $3 per hundredweight, f.o.b. shipping point, between respondent as seller and Lombardo Fruit and Produce Company of St. Louis, Missouri, as buyer. The brokerage contract regarding this sale specified that complainant was to invoice the buyer. 4. At the time of this sale the produce was owned jointly by respondent corporation and A. E. Whiteley, an individual, who, acting for the joint adventurers, made the sale in the name of respondent corporation as seller. 5. On or about May 25, 1963, the watermelons were shipped from Texas to Missouri, pursuant to the contract of sale. Cite as 24 A.D. 712 6. Upon arrival of the shipment, on May 28, 1963, complainant paid $125 as an advance to the trucker. On June 12, 1963, complainant sent respondent its check, payable to Sierra Packing Co., Inc., for $978.75 as an advance payment for the watermelons, less brokerage of $34.30. 7. On June 15, 1963, A. E. Whiteley, on behalf of the joint venture, and contrary to the terms of its brokerage contract with complainant, invoiced and drafted the buyer for the watermelons, payment of said draft to be remitted to Sierra Packing Co., Inc. The buyer paid the draft in the sum of $1,154, representing payment of $1,029 for the produce and $125 for transportation costs. 8. Respondent's board of directors, through its president, W. N. Parkhill, authorized the payment of $569.02 to complainant "for our one half of undisputed amount of double payment made by you on your lot No. 1926," and payment of this amount was made to complainant. 9. No further payment has been made to complainant, although demand for payment of the remaining $569.03 due complainant has been made upon respondent. 10. The informal complaint was filed on January 24, 1964, which was within 9 months after accrual of the cause of action herein. CONCLUSIONS Respondent admits that it engaged as a partner in a joint venture with A. E. Whiteley and that the contracts involved herein were made pursuant to, and within the scope of, this joint venture agreement. The evidence clearly establishes that the joint venture received payment from the buyer and the broker on the transaction in question. Moreover, respondent admits liability for, and has paid to complainant, one half of the amount claimed. The sole argument advanced by respondent is that since it took no active part in this particular sale complainant must look to respondent's co-adventurer, who has failed to make an accounting to respondent, for payment of the other half of the amount claimed. Respondent's position is incorrect. A joint adventure is in the nature of a partnership, to which the rules of partnership ordinarily apply, and one party to the agreement may bind the other by any action within the scope of the agreement, O. P. Hesser v. Hoffman Banana Company, 4 A.D. 588, 592. When such Cite as 24 A.D. 715 a relation is established, an injured party may hold either or both of the joint venturers liable for the full amount due upon the contract, R. J. Head v. Leon Bros. Inc., Sec.Dec. 1842, P.A.C.A. Docket No. 2746. This is consistent with the law of Texas, where this joint venture took place, for Article 6132b, section 15, of the Texas Civil Statutes provides that all partners are liable jointly and severally for all debts and obligations of the partnership. We conclude, therefore, that complainant is entitled to payment from respondent of the full amount claimed, and that respondent's refusal to pay the full amount is in violation of section 2 of the act. Complainant should be awarded reparation in the amount of $569.03 with interest. ORDER Within 30 days from the date of this order, respondent shall pay to complainant, as reparation, $569.03, with interest thereon at the rate of 5 percent per annum from July 1, 1963, until paid. Copies of this order shall be served on the parties. (No. 9840) HOOKER-CORRIN SALES, INC. v. BOLER FRUIT & VEGETABLE COMPANY. PACA Docket No. 9143. Decided May 20, 1965. Novation-Failure to establish-Untimely defense-Acceptance-Liability Having accepted two shipments of fruit and failing to establish a novation as to one shipment and having failed to assert timely defense as to second shipment, respondent liable for full contract price. Mr. John S. Hunt, Los Angeles, Calif., for complainant. Barnes and Elick, McAllen, Texas for respondent. Mr. Elbert A. Cole, 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.). The formal complaint was filed on May 2, 1963. Complainant seeks an award of reparation in the amount of $3,590.20, which is alleged to be the purchase price due complainant in connection Cite as 24 A.D. 715 with two truckloads of fruit sold and shipped to respondent during October 1962. A copy of the formal complaint and a copy of the Department's report of investigation were served upon respondent on June 10, 1963. A copy of the Department's report of investigation was served upon complainant on July 23, 1963. Respondent filed an answer on July 2, 1963, admitting the allegations in the formal complaint as to the contract, but denying generally the remaining material allegations. Respondent affirmatively alleged it was given protection on certain peaches and an adjustment on certain green olives by complainant. An oral hearing was requested by respondent. The oral hearing was held in McAllen, Texas, on May 18, 1964. Complainant was not present nor represented. Respondent was represented by counsel and Edd Boler, respondent's vice-president, testified at the hearing for respondent. At the written request of complainant, the depositions of Allan Corrin and Vern Warkentin were introduced and received in evidence by the presiding officer. Complainant filed a brief. FINDINGS OF FACT 1. Complainant, Hooker-Corrin Sales, Inc., is a corporation whose address is Post Office Box 303, Reedley, California. 2. Respondent, Boler Fruit & Vegetable Company, is a corporation whose address is Post Office Drawer 1, Pharr, Texas. At the time of the transactions involved herein, respondent was licensed under the Act. 3. On or about October 9, 1962, in the course of interstate commerce and by oral contract, complainant sold to respondent a truckload of mixed deciduous fruit, consisting of 700 lugs Halloween peaches at $2.10 per lug, 25 lugs persimmons at $4.50 per lug, and 15 lugs green olives at $4 per lug, plus $35 precooling charges, for a total invoice price of $1,677.50, f.o.b. Reedley, California, shipping point. 4. On or about October 20, 1962, in the course of interstate commerce and by oral contract, complainant sold to respondent a truckload of mixed deciduous fruit, consisting of 750 lugs Halloween peaches at $1.60 per lug, 27 lugs persimmons at $3.75 per lug, 75 lugs of Almeria grapes at $3.50 per lug, and 150 cartons Emperor grapes at $2.00 per carton, plus precooling charges of $16.95, for a total invoice price of $1,880.70, f.o.b. Reedley, California, shipping point. |