Cite as 24 A.D. 852 (No. 9915) In re A. A. TATE, d/b/a A. A. TATE and d/b/a BRECKENRIDGE LIVESTOCK EXCHANGE. P&S Docket No. 3514. Decided June 30, 1965. Market agency-Shippers' proceeds-Accounts of sale-Cease and desist-Consent Respondent is ordered to cease and desist from using shippers' proceeds for unauthorized purposes and issuing incomplete accounts of sale and is ordered to establish a separate bank account for shippers' proceeds. 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 April 16, 1965, by the Director, Packers and Stockyards Division, Consumer and Marketing Service, United States Department of Agriculture, charging respondent with violations of the Act and the regulations thereunder (9 CFR 201.1 et seq.), hereinafter referred to as the regulations . Respondent filed an answer on May 17, 1965. On June 1, 1965, respondent filed a second answer, in which he admits the jurisdictional allegations of the complaint, neither admits nor denies the remaining allegations, waives oral hearing and the report of the Hearing Examiner, and consents to the issuance of a specified order, with findings and conclusions, for the purpose of this proceeding only, based on all allegations contained in the complaint. Complainant has recommended that the order consented to by respondent be issued. FINDINGS OF FACT 1. Respondent, an individual residing at 1301 West Wheeler, Breckenridge, Texas, is now and was at all times material herein engaged in the business of a dealer and of a market agency, buying and selling in commerce livestock on his own account and buying in commerce livestock on a commission basis, and selling in commerce livestock on a commission basis as Breckenridge Livestock Exchange, and is now and was at all times material herein so registered with the Secretary of Agriculture. Cite as 24 A.D. 852 2. Respondent, during the months of August and September 1964, used funds received as proceeds from the sale of livestock consigned to him for sale at the Breckenridge Livestock Exchange stockyard, Breckenridge, Texas, a posted stockyard subject to the provisions of the Act, for purposes of his own and purposes other than the payment of lawful marketing charges and the remittance of net proceeds to shippers, thereby endangering the faithful and prompt accounting therefor and payment of the portions thereof due the owners or consignors of livestock, in that: (a) As of August 28, 1964, respondent had oustanding checks issued to consignors of livestock in the amount of $58,210.92, and had with which to offset such outstanding checks, a bank balance of $4,992.17, deposits in transit of $35,296.24, and current proceeds receivable of $10,221.00, resulting in a deficit of $7,701.51 in funds available to pay shippers' proceeds; (b) As of September 29, 1964, respondent had outstanding checks issued to consignors of livestock in the amount of $32,633.05, and had with which to offset such outstanding checks, a bank balance of $11,604.69, and current proceeds receivable of $4,866.93, resulting in a deficit of $16,161.43 in funds available to pay shippers' proceeds; (c) On or about the dates and in the transactions set forth below, respondent purchased livestock in commerce on his own account and in payment of the purchase prices thereof drew drafts on the custodial bank account of the Breckenridge Livestock Exchange: 3. Respondent, on or about the dates and in the transactions set forth below, in filling orders from Safford Packing Company, Safford, Arizona, for the purchase of livestock on a commission basis, used respondent's own livestock to fill portions of such purchase orders and, in accounting for the purchases, failed to disclose on the purchase invoices submitted to Safford Packing Company, the full, true and correct ownership of the livestock. By reason of the facts set forth in Finding of Fact 2 herein, respondent has violated sections 307 and 312(a) of the Act (7 U.S.C. 208, 213 (a)), and sections 201.40, 201.41, and 201.42 of the regulations (9 CFR 201.40, 201.41, 201.42). By reason of the facts set forth in Finding of Fact 3 herein, respondent has violated sections 307 and 312 (a) of the Act, supra, and section 201.44 of the regulations (9 CFR 201.44). Inasmuch as complainant has recommended that the order consented to by respondent be issued, the order will be issued. Cite as 24 A.D. 855 ORDER Respondent shall cease and desist from (1) using funds received as proceeds from the sale of livestock handled on a commission basis for purposes of his own and purposes other than the payment of lawful marketing charges and the remittance of net proceeds to shippers; and (2) issuing accountings to persons for whom livestock are purchased on a commission basis which fail to disclose the names of the persons from whom livestock were purchased. Respondent shall deposit the gross proceeds received from the sale of livestock on a commission basis in a separate bank account designated as "custodial account for shippers' proceeds," or by some similar designation, and shall maintain such account in conformity with the provisions of section 201.42 of the regulatons (9 CFR 201.42). This order shall become effective on the sixth day after service upon respondent. Copies hereof shall be served upon the parties. ORDERS ISSUED BY THOMAS J. FLAVIN, JUDICIAL OFFICE DISMISSAL ON MOTION OF PARTIES (No. 9916) IRA PACK, JR. v. ABBEVILLE COMMISSION COMPANY. P&S Docket No. 3468. Dismissed June 14, 1965. REPARATION AWARDED-DEFAULT ORDER (No. 9917) LIPSCOMB COMMISSION Co. v. HAROLD CARNES. P&S Docket No. 3526. Reparation of $1,766.35 with 5 percent interest from December 1, 1964, awarded complainant against respondent in order issued June 14, 1965. Cite as 24 A.D. 856 (No. 9918) FRED G. HILVERT CO., INC. v. SENTER BROS., INC. and CRISPO BROS., INC. PACA Docket No. 9070. Decided June 2, 1965. Allowance-Acceptance-Breach of good delivery standards-Damages Where complainant-seller failed to prove offer of allowance on first 2 cars of lettuce and evidence established full protection as to these cars, complainant entitled to net proceeds only. In later transaction, respondent-buyer's diversion of 2 carloads for inspection purposes resulted in acceptance and its liability for purchase price less damages for one carload for complainant's breach of good delivery standards. Complaint against broker dismissed. Mr. Paul G. Hunter, Bureau of Service, Phoenix, Ariz., for complainant. Mr. Irving Coopersmith, New York, N. Y., for respondent Senter Bros., Inc. Mr. Earl G. Strohl, Shippers Traffic Service, Phoenix, Ariz., for respondent Crispo Bros., Inc. Mr. John S. Griffin and Mr. James A. O'Donnell, Presiding Officers. 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.). An informal complaint was filed August 6, 1962. The formal complaint was filed January 17, 1963. Complainant seeks reparation from respondent Senter Bros., Inc., in the sum of $4,890.60, which is alleged to be the total adjusted purchase price due on four carloads of lettuce sold to Senter during April 1962, through Senter's broker, Crispo Bros., Inc. In the alternative, complainant seeks reparation from Crispo in the sum of $4,008.34, which is alleged to be the loss suffered by complainant because of Crispo's failure to notify complainant of Senter's refusal of an allowance offered in reduction of the agreed purchase prices. A copy of the Department's report of investigation was. served upon complainant's representative on February 23, 1963. Copies of the formal complaint and the report of investigation were served upon Senter on February 19, 1963, and upon Crispo on February 25, 1963. Senter filed an answer on April 5, 1963, denying liability to complainant in the amount of $4,890.60. By way of counterclaim, Senter alleges that it sustained damages totalling $7,529 because of complainant's breach of warranty in shipping lettuce which was not in suitable shipping condition. |