Cite as 24 A.D. 912 (No. 9931) LEE BROS. FARMS v. LAROSA TOMATO DISTRIBUTORS, INC. PACA Docket No. 9087. Decided June 28, 1965. Contract-Failure to establish-Desposition testimony-Dismissal Complaint dismissed where alleged contract of sale to respondent not established. Respondent's motions objecting to introduction of deposition testimony denied. Mr. Ira Van Bullock, Lake Worth, Fla., for complainant. Mr. Edward A. Slater, 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.). An informal complaint was received by the Department on October 15, 1962. The formal complaint was filed on April 12, 1963. Complainant seeks an award of reparation in the amount of $9,292.70 for three truckloads of tomatoes allegedly sold to respondent by oral contract and shipped to M. J. Culotta & Son, Los Angeles, California, in January 1962. A copy of the formal complaint and a copy of the report of investigation prepared by the Department were served upon respondent on May 10, 1963. A copy of the report of investigation was served upon complainant's attorney on May 10, 1963. Respondent filed an answer on May 22, 1963, denying that any sum is due complainant under the alleged contract and alleging accord and satisfaction as a defense. An oral hearing was held at Indianapolis, Indiana, on August 20, 1964. The depositions of Jack C. Lee, Roy E. Lee, Robert Ferwerda, Brenda Kitts, and Arend Ferwerda were received in evidence on behalf of complainant. Respondent was represented at the hearing by counsel. Modessa L. Beck, Harry Mogy, and John M. LaRosa testified on behalf of respondent and the deposition of M. J. Culotta was received on its behalf. A brief was filed by respondent. Cite as 24 A.D. 912 FINDINGS OF FACT 1. Complainant is a partnership, composed of Jack Colon Lee, Philip Hixon Lee, William Hoyle Lee, and Roy Edwin Lee, doing business as Lee Bros. Farms, whose address is Route 2, Box 238, Lake Worth, Florida. 2. Respondent, LaRosa Tomato Distributors, Inc., is a corporation whose address is 4101 Massachusetts Avenue, Indianapolis, Indiana. At the time of the transaction involved herein, respondent was licensed under the act. 3. In January 1962, a telephone conversation took place between John M. LaRosa, of respondent corporation, and Arend Ferwerda, complainant's agent. As a result of this conversation, complainant shipped three truckloads of tomatoes, on or about January 25, 26 and 27, 1962, from Florida to M. J. Culotta & Son in Los Angeles, California. 4. The informal complaint was filed on October 15, 1962, which was within 9 months after the accrual of the alleged cause of action. CONCLUSIONS At the hearing, the attorney for respondent objected to the introduction of the deposition testimony of complainant's five witnesses on the ground that the attorney for complainant was present at the taking of the depositions. He also objected to the deposition testimony of Arend Ferwerda on the ground that Ferwerda did not produce all the records covering transactions between complainant and respondent in December 1961 and in January and February 1962. The Presiding Officer overruled the objections and received the five depositions in evidence. By written motion, respondent has renewed its objections but without citing any pertinent authorities. Both motions are again denied. The mere fact that complainant's attorney was present is not improper (26 A, C.J.S. Depositions, § 63). As for the special motion on the Ferwerda deposition, the objection should have been made prior to the hearing so that complainant could have corrected the alleged failure (26 A, C.J.S. Depositions, § 101). Complainant asserts that it sold three truckloads of tomatoes to respondent in January 1962 for shipment to M. J. Culotta & Son, Los Angeles, California. On the other hand, respondent asserts that complainant shipped the tomatoes to M. J. Culotta & Son on consignment, and that respondent acted only as broker for the parties. There is a sharp conflict in the evidence. Cite as 24 A.D. 912 For complainant, Arend Ferwerda, then sales manager for complainant firm, testified by deposition that in January 1962 John M. LaRosa, president of respondent firm, telephoned him from Indianapolis about the purchase of tomatoes and that a contract was entered into for the sale of three truckloads of tomatoes by complainant to respondent for shipment to M. J. Culotta & Son. The three invoices covering the tomatoes, presented in evidence by complainant, indicate that the sales were made to respondent for shipment to Culotta. Robert Ferwerda, son of Arend Ferwerda, testified by deposition that he worked for complainant in January 1962, that he was responsible for the preparation of said invoices, and that he turned them over to the bookkeeper, Brenda Kitts. She testified by deposition that said invoices were mailed by her to respondent. For respondent, John M. LaRosa testified at the hearing that in January 1962 he had a telephone discussion with Arend Ferwerda about the three truckloads of tomatoes, that it was agreed that they would be shipped to M. J. Culotta & Son, Los Angeles, California, on consignment, with respondent acting as broker, and that Broker's Standard Memorandums of Sale covering the transaction were mailed by respondent to complainant and to Culotta. Mrs. Modessa L. Beck, office worker for respondent, testified at the hearing that she mailed the said Broker's Standard Memorandums of Sale to complainant and Culotta. Harry Mogy, former buyer and inspector of tomatoes for respondent, testified at the hearing that the disputed truckloads were not sold to respondent. M. J. Culotta, testifying by deposition, corroborated the testimony of John M. LaRosa that the truckloads were shipped to him on consignment and that the transaction was confirmed by Broker's Standard Memorandums of Sale executed by respondent. Both Arend Ferwerda and Brenda Kitts testified that no Broker's Standard Memorandums of Sale covering the truckloads in question were received from respondent. And both John M. LaRosa and Modessa L. Beck testified that no invoices covering the truckloads were received from complainant. We conclude that complainant has failed to sustain the burden of proving by a preponderance of the evidence that it entered into a contract with respondent for the sale to respondent of the three truckloads of tomatoes shipped to M. J. Culotta & Son in January 1962. The complaint should be dismissed. In view of this conclusion there is no need to discuss the issue of accord and satisfaction. Cite as 24 A.D. 915 ORDER The complaint is dismissed. Copies of this order shall be served upon the parties. (No. 9932) DOMINIC GANDOLFO v. JACK STRICKLAND. PACA Docket No. 9733. Decided June 29, 1965. Jurisdiction-Untimely counterclaim-Liability Respondent's counterclaim based upon alleged transactions which occurred from 2 to3 years before it was filed is not within jurisdiction of Secretary and is dismissed. Respondent liable for balance owing to complainant. Charles Freight Claim Service, Waltham, Mass., for complainant. Miss Daphine M. Anderson, 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 transactions involving shipments of watermelons in interstate commerce. A copy of the formal complaint and a copy of the Department's report of investigation were served upon respondent. A copy of the report of investigation was also served upon complainant. Respondent filed an answer and counterclaim. Since neither the amount involved in the complaint nor counterclaim exceeds $1,500, the issues are submitted under the shortened procedure provided in the rules of practice (7 CFR 47.20). Pursuant to such procedure, complainant filed an opening statement and a brief. Respondent declined the opportunity given him to submit further evidence. FINDINGS OF FACT 1. Complainant is an individual, Dominic Gandolfo, whose address is 51 Prospect Street, North Quincy, Massachusetts. At the Cite as 24 A.D. 917 time of the transactions involved herein, complainant was licensed under the act. 2. Respondent is an individual, Jack Strickland, whose address is Route 1, Box 112, Cerro Gordo, North Carolina. At the time of the transactions involved herein, respondent was not licensed under the act but was subject to license. 3. On or about July 1, 1963, complainant and respondent made an oral contract whereby respondent agreed to purchase carloads of watermelons for the account of complainant and ship them to complainant in Massachusetts, during the 1963 season. Complainant agreed to pay respondent $50 per carload for his services, and to pay transportation and loading costs, and to advance the necessary funds for the purchase of the watermelons. 4. Pursuant to said contract complainant wired a total of $9,600 to respondent during July 1963. 5. During July 1963, pursuant to said contract, respondent purchased 11 truckloads of watermelons in South Carolina which were shipped to complainant in Massachusetts. The expenses of respondent, including transportation advances and loading costs, plus $50 per car for his services, totaled $9,343.79. 6. There is a balance of $256.21 due to complainant from respondent on the contract. 7. The informal complaint was received by the Department on March 23, 1964, which was within 9 months after accrual of the cause of action herein. 8. The counterclaim, filed on March 9, 1965, was not filed within 9 months after accrual of the causes of action alleged therein. CONCLUSIONS Respondent, in his answer, admits that there is a balance due complainant from respondent for the year 1963 in the amount of $256.21. Respondent bases his counterclaim for $551.76 upon alleged balances due to respondent from complainant for the years 1961 and 1962. Jurisdiction of a claim for reparation depends upon the filing of the claim within 9 months after the cause of action accrues. Where respondent's counterclaim rests upon a transaction different from that involved in the complainant's claim, the counterclaim must |