Cite as 24 A.D. 791 plainant purchased for the account of respondent on that date 68 heifer calves and 129 steer calves. It is further alleged: "That the Respondent advanced to Complainant the amount of $17,500.00 to be applied in making the purchase of said calves on order as authorized. *** That the total cost to Respondent of the 68 heifer calves and 129 steer calves, as purchased on order for Respondent by Complainant, was $18,627.33 against which was applied the $17,500 advance as made, leaving a balance of $1,127.33 due and owing after delivery of the total number of calves to Respondent which Complainant did have delivered to him in Holstein, Iowa. *** That thereafter and upon December 3, 1964, Complainant made formal demand upon Respondent by mail for payment of the balance sum of $1,127.33 due and owing upon the order purchase; that Respondent has refused to comply with such demand, and payment of said sum has not been made." Respondent filed an answer; and, thereafter, the presiding officer issued a notice advising complainant that: "Under the Act, the Secretary has jurisdiction to consider a claim for reparation only where a complaint is filed within 90 days of the accrual of the cause of action (7 U.S.C. 210). Logan v. Bloomfield Livestock Auction, 23 A.D. 148 (1964). There is no allegation in the complaint which would indicate that it was timely filed." Complainant was given an opportunity to show cause why the complaint should be dismissed. Complainant filed an "answer" to the notice alleging "that it is apparent from the allegations of the Complaint that the cause of action under the particular circumstances as alleged did not arise until the date of formal demand made upon the Respondent for the balance of the amount of money due and owing, namely December 3, 1964." Respondent filed a reply to complainant's "Show Cause Answer" alleging that the alleged "cause of action accrued at the time of the transaction and no demand is necessary. (Section 10Accounts and Accounting-1 AM JUR 2d)" It is determined that complainant failed to allege facts which would show that the complaint was timely filed. To the contrary, it appears that, at the latest, the alleged cause of action arose upon the delivery of the livestock to the respondent sometime in October of 1964, more than 90 days prior to the filing of the complaint. Under the circumstances, the complaint must be and is hereby dismissed. Copies hereof shall be served upon the parties. Cite as 24 A.D. 793 (No. 9893) In re JAMES C. Cook. P&S Docket No. 3510. Decided June 9, 1965. Checks-Failure to pay when due-Records-Insolvency-Suspension of registration-Consent Respondent is ordered to cease and desist from issuing insufficient funds checks in payment of purchased livestock and from failing to pay when due for livestock purchased, is ordered to keep records that fully disclose all transactions in his business under the act and is suspended as a registrant under the act for a period of 30 days and thereafter until no longer insolvent. Mr. Raymond W. Fullerton for complainant. Respondent pro se. Decision by Thomas J. Flavin, Judicial Officer PRELIMINARY STATEMENT This is a disciplinary proceeding under the Packers and Stockyards Act, 1921, as amended and supplemented (7 U.S.C. 181 et seq.), hereinafter referred to as the act, instituted by a complaint filed on April 25, 1965, by the Director, Packers and Stockyards Division, United States Department of Agriculture, charging that respondent's financial condition does not meet the requirements of the act and that respondent violated certain provisions of the act and the regulations promulgated thereunder (9 CFR 201.1 et seq.), hereinafter referred to as the regulations. On May 20, 1965, respondent filed an answer in which he admits the jurisdictional allegations of the complaint, neither admits nor denies the remaining allegations set forth in the complaint, waives oral hearing and the report of the Hearing Examiner, and consents to the issuance of a specified order containing findings of fact and conclusions based upon the allegations set forth in the complaint. Complainant has recommended that the order consented to by respondent be issued. FINDINGS OF FACT 1. Respondent, James C. Cook, is an individual whose address is 704 Woodland Avenue, Winchester, Virginia. Respondent is now, and was at all times menitoned herein, registered with the Secretary of Agriculture to engage in the business of a dealer buying and selling livestock in commerce for his own account, and a market agency buying livestock in commerce on a commission basis. Cite as 24 A.D. 793 2. The Farmers Livestock Exchange, Inc., stockyard, Winchester, Virginia, the Fauquier Livestock Exchange, Inc, stockyard, Marshall, Virginia, the Pocahontas Producers Cooperative Association, Inc., stockyard, Marlinton, West Virginia, and the Woodstock Livestock Market, Inc., stockyard, Woodstock, Virginia, are now, and were at all times mentioned herein, posted stockyards subject to the provisions of the act. 3. Respondent's current liabilities exceed his current assets. As of March 5, 1965, respondent's current liabilities exceeded his current assets by approximately $16,200.00. 4. Respondent, on or about the dates and in the transactions listed below, purchased livestock in commerce and, in connection therewith, issued checks drawn on respondent's account in the Shenandoah Valley National Bank, Winchester, Virginia, in purported payment of the purchase price thereof without having and maintaining sufficient funds on deposit in said account to pay such checks: 5. Respondent, on or about the dates and in the transactions listed below, purchased livestock in commerce and, in connection therewith, failed to pay, when due, the purchase price thereof: 1 This check was given in purported payment of the purchase price of all the livestock purchases from Fauquier Livestock Exchange, Inc., listed in Finding of Fact 4. 6. Respondent failed to keep accounts, records, and memoranda which fully and correctly disclose all transactions involved in his business under the act, in that as of March 5, 1965, respondent failed to keep a general ledger containing accounts showing his assets, liabilities, income, expenses and net worth or capital; monthly reconciliations of his bank account; all buyers' invoices; and an accurate record of the number and weight bought, sold, or otherwise disposed of each business day, and the prices paid or received therefor, and the charges made for services. CONCLUSIONS By reason of the facts set forth in Finding of Fact 3 herein, respondent is insolvent within the meaning of the act (7 U.S.C. 204). By reason of the facts set forth in Findings of Fact 4, 5 and 6 herein, respondent has wilfully violated sections 312 (a) and 401 of the act (7 U.S.C. 213 (a) and 221), and sections 201.43 (b) and 201.46 (a) of the regulations (9 CFR 201.43 (b) and 201.46 (a)). Inasmuch as respondent has consented to the issuance of the order set forth below and complainant has recommended that such order be issued, the order will be issued. ORDER Respondent shall cease and desist from (1) issuing checks in payment of livestock purchased in commerce without having and maintaining sufficient funds in the bank upon which they are drawn to pay such checks; and (2) failing to pay, when due, the purchase price of livestock purchased in commerce. Cite as 24 A.D. 796 Respondent shall keep such accounts, records, and memoranda as will fully and correctly disclose all transactions involved in his business under the act, including, among other things, a general ledger containing accounts showing his assets, liabilities, income, expenses, and net worth or capital; monthly reconciliations of his bank account; all buyers' invoices; and an accurate record of the number and weight of livestock bought, sold, or otherwise disposed of each business day, and the prices paid or received therefor, and the charges made for services. Respondent is suspended as a registrant under the act for a period of 30 days and thereafter until he demonstrates that he is no longer insolvent. When respondent demonstrates that he is no longer insolvent, a supplemental order will be issued in this proceeding terminating such suspension after the 30 day period. Copies hereof shall be served upon the parties and this order shall become effective on the sixth day after service hereof upon the respondent. (No. 9894) In re J. C. LOGAN. P&S Docket No. 3487. Decided June 9, 1965. Failure to pay when due-Checks-Records-Insolvency-Suspension of registration-Consent Respondent is ordered to cease and desist from failing to pay when due for livestock purchased and from issuing insufficient funds checks in payment of such livestock, is ordered to keep records that fully disclose all transactions in his business under the act and is suspended as a registrant under the act until no longer insolvent. Mr. Garrett N. Wyss for complainant. Respondent pro se. Decision by Thomas J. Flavin, Judicial Officer PRELIMINARY STATEMENT This is a disciplinary proceeding under the Packers and Stockyards Act, 1921, as amended and supplemented (7 U.S.C. 181 et seq.), hereinafter referred to as the Act, instituted by a complaint filed on March 18, 1965, by the Acting Director, Packers and Stockyards Division, United States Department of Agriculture, charging respondent with violations of the Act and the regu |