Cite as 24 A.D. 787 in commerce and failing to pay, without just cause, the full price agreed upon at the time of sale. This order shall become effective six days after service upon respondent and copies hereof shall be served upon the parties. (No. 9891) HOWARD W. GUENTHER v. MILAN LIVESTOCK AUCTION. P&S Docket No. 3383. Decided June 8, 1965. Payment-Refund of-Mistake of fact Respondent ordered to return money received from complainant who made payment on assumption that he owed respondent for cattle that agent falsely represented as having been purchased from respondent for complainant. Valentine, Greenleaf & Griffing, Centerville, Iowa, for complainant. Mr. Giles H. Penstone, Presiding Officer. Decision by Thomas J. Flavin, Judicial Officer PRELIMINARY STATEMENT This is a reparation proceeding under the Packers and Stockyards Act, 1921, as amended (7 U.S.C. 181 et seq.), hereinafter referred to as the Act. In a complaint filed on June 10, 1964, complainant seeks reparation in the sum of $6,392.17, alleging that on May 5, 1964, he placed an order with Harold Banks for some calves; that on May 6, 1964, complainant was advised by Harold Banks that he had purchased 64 calves for complainant's account at the Milan Livestock Auction, Milan, Missouri; that complainant delivered to Harold Banks a personal check in the amount of $6,392.17; that check was made payable to the Milan Livestock Auction; that on May 7, 1964, "Mr. Hugh Morehead, one of the owners of the Milan Livestock Auction" returned the "check because of an error in the check and asked for another"; and that said Mr. Morehead took the second check knowing that no cattle had been purchased for complainant's account at the Milan Livestock Auction. A copy of the complaint and a copy of the investigative report, prepared by the Packers and Stockyards Division of the Depart Cite as 24 A.D. 787 ment and filed in the proceeding pursuant to section 202.40 of the rules of practice (9 CFR 202.40) were served upon the Milan Livestock Auction on September 11, 1964. A copy of the investigative report was served upon complainant on September 10, 1964. On September 25, 1964, the Milan Livestock Auction requested an oral hearing and filed an answer denying liability to complainant. An oral hearing was held on November 23, 1964, in Centerville, Iowa. Giles H. Penstone, of the Office of the General Counsel of this Department, served as presiding officer. Complainant was represented by Mr. Meredith R. Griffing, Attorney at Law, Centerville, Iowa. The Milan Livestock Auction was represented by Mr. C. T. 'Tad' Sanders, Attorney at Law, Kansas City, Missouri. Six witnesses testified at the hearing. Proposed findings of fact and conclusions of law were filed by the parties. FINDINGS OF FACT 1. Complainant, Howard W. Guenther, is an individual whose address is 402 E. Walnut, Centerville, Iowa. 2. Respondents, Hugh Morehead, Senior, Hugh Morehead, Junior, and Tom A. Morehead, partners doing business as Milan Livestock Auction, Milan, Missouri, were at all times material herein registered under the Act with the Secretary of Agriculture as a market agency and dealer. 3. On or about May 5, 1964, complainant asked Harold Banks to purchase some calves for the account of the former at the Milan Livestock Auction stockyard, Milan, Missouri, a posted stockyard subject to the provisions of the Act. On or about May 6, 1964, Harold Banks falsely represented to complainant that, pursuant to his request, 64 head of steers were purchased at the Milan Livestock Auction for complainant's account by Banks for a purchase price of $6,392.17. In fact, no livestock had been purchased by Banks for complainant's account. Complainant issued a check payable to the Milan Livestock Auction and delivered it to Harold Banks. The check bore the notation "for 64 head of cattle." 4. On or about May 7, 1964, Harold Banks delivered the check to the Milan Livestock Auction by way of part payment for 275 hogs purchased by Banks at such auction market on or Cite as 24 A.D. 787 about April 28, 1964. Respondent Hugh Morehead, Senior, went to the bank upon which the check was drawn. Officials at the bank noted that there was a discrepancy between the numbers and the words specifying the amount of the check. Complainant was called to the bank. Upon arrival, he issued another check in the amount of $6,392.17. The check was delivered to respondent Hugh Morehead, Senior, who endorsed it and exchanged it for a cashier's check in the amount of $6,392.17. Complainant issued and delivered the second check on the assumption that he owed $6,392.17 to the Milan Livestock Auction in connection with the purchase by Banks of 64 head of cattle. 5. The complaint was filed within 90 days of the accrual of the cause of action. CONCLUSIONS Harold Banks falsely represented to complainant that pursuant to his request 64 head of steers were purchased at the Milan Livestock Auction for his account by Banks. Complainant issued a check in the amount of the alleged purchase price of the steers. The check was made payable to the Milan Livestock Auction. It bore the notation "for 64 head of cattle." The check was delivered by complainant to Banks who in turn delivered it to respondent Hugh Morehead, Senior in part payment for 275 hogs previously purchased by Banks at the Milan Livestock Auction. Respondent Hugh Morehead, Senior went to the bank upon which the check was drawn for the purpose of obtaining a cashier's check in exchange for complainant's check. At the bank, the cashier noted a discrepancy between the numbers and the words specifying the amount of the check. Mr. Morehead advised officials at the bank that the check was delivered to him by Harold Banks as part payment for some hogs purchased at the Milan Livestock Auction. Said officials contacted complainant and asked him to come to the bank. When complainant arrived, he was advised that there was an error on the $6,392.17 check he had issued the previous day. Complainant issued another check and delivered it to respondent Hugh Morehead, Senior who before leaving the bank, exchanged it for a cashier's check. Respondent argues that the Milan Livestock Auction and complainant both are innocent parties but inasmuch as complainant was the one who entrusted Banks with the check turned over by him to the Milan Livestock Auction, complainant should also be the one to suffer the loss. Such argument is without merit. Cite as 24 A.D. 787 The hogs were sold and delivered by the Milan Livestock Auction more than a week prior to the issuance of complainant's checks. Complainant's actions did not cause the Milan Livestock Auction to change its position in a way which might have made it unjust to require the return of the money. Respondent Hugh Morehead, Senior admits that when Harold Banks delivered the check to him, said respondent saw the notation "for 64 head of cattle" thereon and wondered "that it would be just exactly to the penny, the amount that I lack of getting my money." Said respondent thought "that there was something peculiar about that." When complainant delivered the newly issued $6,392.17 check to respondent Morehead, Senior at the bank, the parties were sitting around a desk. Upon the desk was another check; and complainant asked Mr. Morehead "what that was." The latter answered that such check related to "another deal." Such other check was a certified check for $3,000 delivered by Banks to said respondent along with complainant's check. The amounts of the two checks added up to the purchase price of the 275 hogs. Respondent Hugh Morehead, Senior testified that at the bank at the time he received complainant's second check, he did tell complainant that the check was delivered to the Milan Livestock Auction in payment for hogs and that no cattle were purchased by Banks at such auction market. Accordingly, if respondent Morehead Senior's testimony is accepted as the correct version of the facts, one would have to conclude that complainant paid $6,392.17 to the Milan Livestock Auction knowing that he did not owe said partnership any money. Complainant denies that he was told prior to the time respondent Morehead Senior left the bank, that no cattle were purchased by Banks; or that the latter had purchased some hogs from the Milan Livestock Auction. There is no evidence that complainant was legally bound or had a moral obligation to pay Bank's debts. On the basis of the record it is concluded that complainant paid $6,392.17 to the Milan Livestock Auction on the assumption that he owed the money to said auction market for the cattle Banks had purported to purchase for complainant; and that he had no reason to know that the former had not purchased the cattle. It is well established that "where money is paid to another under the influence of a mistake of fact, that is, on the mistaken supposition of the existence of a specific fact which would Cite as 24 A.D. 791 entitle the other to the money, and the money would not have been paid if it had been known to the payor that the fact was otherwise, it may recovered." Speers v. Lucas, 299 S.W. 736, 738 (1926). On the basis of the foregoing it is concluded that the failure by the Milan Livestock Auction to return the $6,392.17 to complainant constituted an unjust practice in violation of the Act, and respondents should be ordered to pay reparation to complainant in the amount of such sum. ORDER Within 30 days from the date of this order, respondents Hugh Morehead, Senior, Hugh Morehead, Junior, and Tom A. Morehead, partners doing business as Milan Livestock Auction, shall jointly and severally pay to complainant as reparation the sum of $6,392.17 with interest thereon at the rate of 5% per annum from June 1, 1964, until paid. Copies hereof shall be served upon the parties. (No. 9892) NATOMA LIVESTOCK EXCHANGE, INC. v. DON LUDVIGSON. P&S Docket No. 3498. Decided June 8, 1965. Complaint not timely filed-Cause of action-Time of accrual- Where complainant failed to allege facts to show that complaint was timely filed, complaint dismissed. Mr. C. T. 'Tad' Sanders, Kansas City, Mo., for complainant. Miss Eva S. Reifenberg, Presiding Officer. Decision by Thomas J. Flavin, Judicial Officer ORDER OF DISMISSAL This is a reparation proceeding under the Packers and Stockyards Act, 1921, as amended (7 U.S.C. 181 et seq.), hereinafter referred to as the Act. In a complaint filed on February 12, 1965, complainant seeks reparation from respondent alleging that on or about October 17, 1964, respondent placed an order with complainant authorizing it to purchase for his account some steer and heifer calves; and that pursuant to such order com |