Cite as 24 A.D. 720

in October 1961. The crew worked in complainant's cellar on October 23, 24, 25, and 26, in the area where the water-logged potatoes were thought to be, packing out 1,174 hundredweights of potatoes and leaving the culls in the cellar. Respondent paid complainant for the 1,174 hundredweights at $1.50 per hundredweight, or a total of $1,761, less $17.61 advertising tax, for a net of $1,743.39.

5. Respondent's sorting crew returned to complainant's cellar for the four days of February 19, 20, 21 and 22, 1962. During this time 1,195 hundredweights of potatoes were packed out by respondent.

6. Respondent's crew returned to complainant's cellar in March and sorted potatoes there on the 19th, 23rd, 26th, 27th, 28th, and 31st. This resulted in a pack-out of 1,137 hundredweights.

7. Respondent, on April 5, 1962, settled with complainant for the February and March pack-outs as follows:

8. Respondent paid complainant the sum of $4,029.05 with its check No. 3549. This amount, plus the $1,743.39 paid to complainant by respondent in November 1961, amounts to a total of $5,772.44 paid to complainant by respondent in connection with the transaction between the parties.

9. An informal complaint was filed on December 31, 1962, which was within 9 months after the alleged cause of action under the written contract accrued.

CONCLUSIONS

The first question for determination in this proceeding has to do with that part of the agreement between the parties dealing with the date or time wherein the potatoes were to have been sorted and removed from complainant's cellar by respondent. It is respondent's position that the potatoes were not required to be sorted and moved until April 1, 1962, as provided in the written

Cite as 24 A.D. 720

contract of May 27, 1961. Complainant, however, alleges in his complaint that the written contract was supplemented by an oral agreement made during October 1961, which provided for the sorting and removal of the potatoes by respondent by mid-November 1961.

As a preliminary to deciding the issue raised by the parties and set forth above, we think it expedient to dispose first of another matter introduced by the parties in their briefs, to wit, the application of the parol evidence rule to these circumstances. At first blush the rule would seem to bar the receipt of parol evidence on a point definitely covered by the parties in their written contract. It will be noted, however, that the alleged oral agreement modifying the written contract is said by complainant, its proponent, to have been made subsequent to the written contract. It has been held, under somewhat similar circumstances, that this provides an exception to, and avoids the application of, the rule in Idaho. Idaho Gold Dredging Corporation v. Boise Payette Lumber Co., 62 Idaho 683, 115 P. 2d 401 (1941).1 Accordingly, we conclude that the parol evidence rule is not a bar to the receipt of evidence as to the alleged oral agreement between the parties.

Returning to the matter of the alleged oral agreement, we note from the evidence that the testimony of complainant and the manager of respondent corporation, Ray DeRoche, is directly in conflict, with DeRoche denying that any agreement other than the written contract was reached by the parties. As the party affirmatively alleging that the oral supplementary contract was made, the burden rests upon complainant to establish his allegation by a preponderance of the evidence. We find it unnecessary to decide this issue, however, for even if complainant had established the oral contract, as alleged in his complaint, and had also established a breach of such contract by respondent, we would be in no position to afford him relief in connection with such breach. This is due to the fact that the alleged cause of action under the oral contract would have accrued about mid-November 1961, when such contract was allegedly breached by respondent, while the informal complaint was filed on December 31, 1962, or some thirteen months later. Since our jurisdiction is limited by the act to those cases in which a complaint is filed within nine months after the cause of action accrued, 7 U.S.C. 499f, we would be

1 The position of the Idaho courts on this aspect of the parol evidence rule appears to be in keeping with the majority rule. See McKelvey, Handbook of the Law of Evidence, § 362, n. 88 (5th ed. 1944).

Cite as 24 A.D. 720

without jurisdiction to consider the alleged breach taking place in November 1961.

Complainant, however, alleges in his complaint yet another cause of action, based upon respondent's alleged failure to account fully and to pay complainant for all the potatoes taken from the 45 acres in question. In this connection, complainant alleges that the quantity of potatoes in the cellar, as estimated by "cubing" the pile, indicated that respondent had not fully accounted for all potatoes taken from the cellar. Complainant stated that the total of the monies paid out to the pickers at a set sum per hundredweight, as well as his own observation of the harvest, supported his conclusion on this point.

The evidence shows that complainant was given copies of the records kept by respondent in connection with the sorting of the crop.2 It appears that complainant made no complaint with respect to the way the pack-out was going at the time of receiving these records. In fact, judging from his own testimony at the hearing of June 30, 1964 (Transcript, pages 15, 16, 17, 31), complainant appears to have felt that the records were accurate. While complainant contends that his returns from the potatoes were lessened due to damage resulting from freezing injury to the potatoes when the cellar doors were allegedly left open by respondent's crew in February, complainant has failed to show that there was, in fact, any freezing injury sustained by the tubers.

Complainant has the burden of proving that respondent failed to render proper accounts and to pay complainant for the crop of potatoes involved herein. We conclude that complainant has failed to sustain this burden, except as to the purchase price of 78 hundredweight, at $1.50 per hundredweight, totaling $117, which respondent admits it owes to complainant as the result of an accounting error. Respondent's failure to account for the 78 hundredweight, and to pay complainant the agreed purchase price therefor, is in violation of section 2 of the act, for which reparation in the sum of $117 should be awarded with interest.

ORDER

Within 30 days from the date of this order, respondent shall pay to complainant, as reparation, $117, with interest thereon at the rate of 5 percent per annum from May 1, 1962, until paid. Copies of this order shall be served on the parties.

2 Copies of these records were also submitted in evidence at the oral hearing.

Cite as 24 A.D. 725

Orders issued by Thomas J. Flavin, Judicial Officer

DISMISSAL ON MOTION OF PARTIES

(No. 9842)

PETE PAPPAS AND SONS, INCORPORATED v. JOE BELSON. PACA Docket No. 9620. Dismissed May 12, 1965.

(No. 9843)

SKONE & CONNORS v. WOOLEN PRODUCE COMPANY. PACA Docket No. 9731. Dismissed May 12, 1965.

(No. 9844)

MENDELSON-ZELLER CO., INC. v. QUALITY PRODUCE CO. PACA Docket No. 9686. Dismissed May 28, 1965.

DISMISSAL SETTLEMENT BETWEEN PARTIES

(No. 9845)

DONALD HANNANT v. BOLER FRUIT & VEGETABLE COMPANY. PACA Docket No. 9462. Dismissed May 12, 1965.

(No. 9846)

COVE VALLEY PACKERS, INC. v. UNITED PRODUCE CO., INC. PACA Docket No. 9693. Dismissed May 12, 1965.

REPARATION AWARDED-ADMISSION OF LIABILITY

(No. 9847)

HARRY J. ASLAN v. HOWARD COHEN Co. PACA Docket No. 9742. Reparation of $5,750 with 5 percent interest from September 1, 1964, awarded complainant against respondent in order issued May 7, 1965.

Cite as 24 A.D. 726

(No. 9848)

BARR PACKING COMPANY v. HOWARD COHEN CO. PACA Docket No. 9741. Reparation of $25,770 with 5 percent interest from December 1, 1964, awarded complainant against respondent in order issued May 7, 1965.

(No. 9849)

BLUE GOOSE GROWERS, INC. v. HOWARD COHEN CO. PACA Docket No. 9745. Reparation of $2,092.31 with 5 percent interest from December 1, 1964, awarded complainant against respondent in order issued May 7, 1965.

(No. 9850)

OASIS GARDENS, INC. v. HOWARD COHEN CO. PACA Docket No. 9746. Reparation of $1,275 with 5 percent interest from February 1, 1965, awarded complainant against respondent in order issued May 7, 1965.

(No. 9851)

O. P. MURPHY PRODUCE COMPANY, INC. v. MAGIC VALLEY PRODUCE COMPANY. PACA Docket No. 9774. Reparation of $2,956.50 with 5 percent interest from November 1, 1964, awarded complainant against respondent in order issued May 19, 1965.

(No. 9852)

SKONE & CONNORS v. MAGIC VALLEY PRODUCE COMPANY. PACA Docket No. 9773. Reparation of $1,867.50 with 5 percent interest from October 1, 1964, awarded complainant against respondent in order issued May 19, 1965.

REPARATION AWARDED-DEFAULT ORDER

(No. 9853)

DADE COUNTY GROWERS' EXCHANGE v. J & R TOMATOES, INC. PACA Docket No. 9756. Reparation of $5,584.75 with 5 percent interest from February 1, 1965, awarded complainant against respondent in order issued May 5, 1965.