Cite as 24 A.D. 856 damage, we deduct the contract price of $1,831.80 and find respondent Senter is due from complainant the sum of $298.20 on car PFE 20544. We have heretofore found that Senter is indebted to complainant for the net proceeds of $366.68 received from the sale of the lettuce contained in cars PFE 55696 and PFE 46202, shipped on April 16, 1962. We have further found that respondent Senter is indebted to complainant for the full purchase price, $1513.60, for the lettuce shipped on April 23, 1962, in car PFE 43806; or a total amount due complainant from Senter of $1,880.28. Deducting from this figure the $298.20 due respondent Senter from complainant in connection with car PFE 20544, we find that Senter is indebted to complainant in the amount of $1,582.08. The failure of Senter to pay this sum to complainant is in violation of Section 2 of the Act. Complainant should be awarded reparation in the amount of $1,582.08, with interest. Senter's counterclaim in connection with car PFE 43806 should be dismissed. We have previously stated that the counterclaim in connection with cars PFE 55696 and PFE 46203 should be dismissed. It is further concluded, on the basis of all the evidence in this case, that no cause of action against the broker Crispo has been established by complainant. It follows that the complaint as to respondent Crispo should be dismissed. ORDER Within 30 days from the date of this decision, respondent Senter Bros., Inc., shall pay to complainant, as reparation, $1,582.08, with interest thereon at the rate of 5 percent per annum from June 1, 1962, until paid. The complaint as to respondent Crispo Bros., Inc., is hereby dismissed. The counterclaim of respondent Senter Bros., Inc., as to cars PFE 55696, PFE 46203, and PFE 43806 is hereby dismissed. The facts and circumstances as set forth herein shall be published. Copies of this order shall be served upon the parties. Cite as 24 A.D. 873 (No. 9919) THOMPSON & JOHNSON POTATO Co. v. CITY POTATOE SALES. PACA Docket No. 9531. Decided June 7, 1965. Delivered sale-Acceptance-Liability Having accepted carload of potatoes in a delivered sale and having submitted no evidence to prove alleged decay, respondent liable for full purchase price. Complainant and respondent pro se. Mr. James V. Wright, 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 transaction involving a carload of potatoes in interstate commerce. A copy of the formal complaint and a copy of the Department's report of investigation were served on respondent and respondent filed an answer thereto. Since the damages claimed in the formal complaint do not exceed $1,500, the evidence is submitted under the shortened procedure provided in the rules of practice, 7 CFR 47.20. Pursuant to this procedure, complainant filed an opening statement. Respondent was given the opportunity to file an answering statement but did not do so. Neither party filed a brief. FINDINGS OF FACT 1. Complainant is a partnership composed of Allan Clifton Thompson and Russell Hilton Johnson, doing business as Thompson & Johnson Potato Co., whose address is P.O. Box 438, Walhalla, North Dakota. 2. Respondent is an individual, Sam Simon Petro, doing business as City Potatoe Sales, whose address is P.O. Box 2941, Houston, Texas. At the time of the transactions involved herein, resspondent was licensed under the act. 3. On April 15, 1963, in the course of interstate commerce, complainant sold to respondent 506 100-pound sacks of Kennebec potatoes, U. S. Commercial grade, 214′′ minimum, contained in Cite as 24 A.D. 873 car FGEX 59042, at an agreed price of $2.80 per sack, delivered Houston, Texas or a total delivered price of $1,416.80 for the carload. The parties agreed, at the time of the sale, that payment for the potatoes should be made by respondent to complainant within four to six months from the date of such sale. 4. The subject potatoes were federally inspected at Walhalla, North Dakota, at 4 p.m. on the date of sale, and were certified as being U. S. Commercial grade, 21/4" minimum. 5. Complainant, subsequent to the sale of the potatoes to respondent, and on the same date, diverted car FGEX 59042 from Walhalla, North Dokota, to respondent at contract destination, Houston, Texas. The potatoes, upon arrival at Houston, were accepted by respondent. 6. The total delivered contract price of the potatoes is $1,416.80. Freight charges of $576.84 were paid by and are credited to respondent, leaving a net of $839.96, no part of which has been paid to complainant. 7. An informal complaint was filed on March 16, 1964, which was within 9 months after the cause of action herein accrued. CONCLUSIONS There is no dispute regarding the fact that respondent accepted the potatoes involved herein. Having done so, respondent is liable to complainant for the agreed purchase price thereof, less any provable damages resulting from any breach of contract by complainant. Respondent, in his unverified answer, appears to be saying that the contract was breached by respondent in that the "condition of some sacks ran as high as 40 percent decay.... The nature of the breach allegedly committed by complainant is not clearly set forth by respondent in his answer. If respondent is alleging that the shipment failed to meet the requirements for U. S. Commercial grade potatoes at contract destination, as required by the delivered1 terms of the contract between the parties, then respondent's acceptance of the shipment places upon him the burden of proving such allegation by a preponderance of the evidence. In this latter connection it is to be noted 1 See section 46.41 (p) of the regulations in effect at this time. Cite as 24 A.D. 875 that respondent has submitted no evidence in this proceeding, despite the opportunity to do so. Although respondent filed an answer in this proceeding it is not admissible as evidence under the rules of practice (7 CFR 47.20 (a)), since it is not vertified. While the exhibits included in the Department's report of investigation are accepted as evidence herein, pursuant to the rules of practice (7 CFR 47.7), this evidence is not corroborative of respondent's apparent position regarding a breach of contract by complainant. We conclude, therefore, the respondent has failed to sustain his burden of proving that complainant has breached the contract of April 15, 1963. The delivered contract price of the potatoes involved herein is $1,416.80. From this sum we subtract $576.84 paid by respondent as freight charges, leaving a net due of $839.96. Respondent's failure to pay this sum to complainant is a breach of the contract made between the parties and is in violation of section 2 of the act, resulting in damages to complainant of $839.96. Accordingly, reparation in the sum of $839.96 should be awarded to complainant, with interest. ORDER Within 30 days from the date of this order, respondent shall pay to complainant, as reparation, $839.96, with interest thereon at the rate of 5 percent per annum from November 1, 1964, until paid. Copies of this order shall be served on the parties. (No. 9920) PACIFIC LETTUCE Co. v. M & C PRODUCE CO., INC., PACA Docket No. 9515. Decided June 8, 1965. Reconsideration-Shortened procedure-Prior order amended Prior order amended to reduce amount of damages awarded complainant on basis of amount claimed rather than on basis of full contract price. Amount of claim determines procedure to be followed. Decision by Thomas J. Flavin, Judicial Officer Cite as 24 A.D. 875 ORDER AMENDING PRIOR ORDER This is a reparation proceeding under the Perishable Agricultural Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.). An order was issued on April 28, 1965, awarding reparation to complainant against respondent in the sum of $1,168.24, with interest. A copy of this order was served on respondent on April 29, 1965, and respondent filed a petition for reconsideration on May 10, 1965, which included a request for oral hearing. Since the petition was filed within the time allowed for that purpose under the rules of practice, 7 CFR 47.24 (a), it automatically operated to set aside the order of April 28, 1965, pending final action on the petition. Respondent, in its petition and as a first ground for reconsideration of the order of April 28, contends that we erred in denying the request for oral hearing which was contained in the answer. In support of this line of reasoning, respondent points to Finding of Fact No. 3, wherein we found the contract price of the subject car of lettuce to be $1,520.24, which is $20.24 in excess of the amount required under the rules of practice, 7 CFR 47.15, for an oral hearing. Respondent, in further support of its contention that respondent is entitled to an oral hearing in this case, states that we, in our order of April 28, "used the liability of $1,520.24 as the basis of the complainant's claim." Section 47.15 of the rules of practice provides, in relevant part, as follows: "Where the amount of damages claimed, . . . in the complaint does not exceed $1,500 an oral hearing shall not be held, ..." (Emphasis ours). The key word in this quotation, as far as the circumstances of this case are concerned, is the word "claimed." Complainant, in its complaint, claimed $1,500 as damages, and it was this amount that we accepted as being its claim. Respondent apparently argues, however, that complainant must claim, as damages, the full contract price of the carload of lettuce, since any other view of the situation would put complainant in the position of being able to "confer jurisdiction" on the Department. We are not aware of any rule which compels a complaining party to request, as damages, the full contract price of goods sold. In fact, it is our opinion that complainant may restrict his claim in any manner which he deems appropriate, even where |