Cite as 24 A.D. 959 (No. 9985) CHADRON SALES COMPANY INC. v. FRED DANIELS AND LLOYD LIEDTKE. P&S Docket No. 3531. Reparation of $2,232.44 with 5 percent interest from September 1, 1964, awarded complainant against respondent Fred Daniels in order issued July 15, 1965. (No. 9986) COONEY & KORSHAK, INC. v. THE PIONEER FRUIT & COMMISSION Co. PACA Docket No. 9644. Decided July 2, 1965. Acceptance Liability-Warranty-Damages-Not established Having accepted shipment of onions and having failed to establish damages resulting from alleged breach of warranty, respondent liable for balance of contract price. Mr. Walter A. Hilgeson, Chicago, Ill., for complainant. Mr. Nicholas A. Lenge, Hartford, Conn., for respondent. 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 onions in interstate commerce. A copy of the formal complaint and a copy of the Department's report of investigation were served upon respondent and respondent filed an answer thereto. A copy of the report of investigation was also served upon complainant. Since the amount claimed in the formal complaint does 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. Each party filed a brief. Cite as 24 A.D. 959 FINDINGS OF FACT 1. Complainant, Cooney & Korshak, Inc., is a corporation whose address is 1425 South Western Avenue, Chicago, Illinois. 2. Respondent, The Pioneer Fruit & Commission Co., is a corporation whose address is P.O. Box 95, Hartford, Connecticut. At the time of the transaction involved herein, respondent was licensed under the act. 3. On July 7, 1964, in the course of interstate commerce, complainant sold to respondent 600 sacks of California yellow onions, medium size, at an agreed price of $2.15 per sack, and 200 sacks of California yellow onions, jumbo size, at an agreed price of $2.00 per sack, or a total contract price of $1,690.00 for the 800 sacks, delivered Hartford, Connecticut. 4. The onions involved in this transaction were contained in car PFE 20037, having been shipped out of Stockton, California, on June 30, 1964, and consigned by complainant to itself at Chicago, Illinois. Pursuant to the sale to respondent on July 7, and on the same day, complainant diverted car PFE 20037 to respondent at Hartford, Connecticut. 5. Car PFE 20037 arrived in Hartford at 7 p.m. on Saturday, July 11, and was placed on team track at 5 a.m. on Monday, July 13. The Railroad Perishable Inspection Agency inspected the onions at 2:40 p.m. on July 13, with the following relevant results: "Commodity Temperature, Top: 71° Bottom: 70° * * * "Load-Commodity-Condition-Brand: J—E "Approximately 11⁄2 unloaded out of doorway area toward A end ... “Jumbo and medium size yellow type onions. Clean . . . Firm "Medium size: 1-9%, average 414% decay mostly bacterial soft rot gray mold neck rot. "Jumbo size: 0-8%, average 31% % bacterial soft rot decay. No abnormal bruising. 6. Respondent, upon receiving the results of the RPIA inspection, telephoned complainant and informed it (complainant) of Cite as 24 A.D. 959 the inspector's findings. Complainant then suggested that respondent have a Federal inspection made of the onions. Respondent, pursuant to this suggestion, applied for Federal inspection, which was made at 3:45 p.m. on July 14. The results of that inspection, in relevant part, are as follows: “Product inspected: Yellow onions in open mesh bags . . Applicant states Jumbo lot: 16 bags; Medium lot: 153 bags. * * * "Temperature of product: not taken. 66* * * "Condition: ... Jumbo lot: Decay ranges 8 to 12% average 10%. Medium lot: Decay ranges 5 to 11% average 8%. Decay each lot is Gray Mold Rot in all stages affecting all portions of the onions. "Grade: Each lot meets quality requirements but fails to grade U.S. No.1 large or U.S. No. 1 medium account of condition. "Remarks: Inspection and certificate restricted to product and lading in above lots consisting entirely of bags that have been set aside." The results of the Federal inspection were transmitted to complainant by respondent by telephone on July 14, 1964. 7. The delivered contract price of the onions involved herein is $1,690. Respondent has paid $795.88 as freight charges to the carrier, and $694.12 to complainant as an undisputed amount, or a total of $1,490, which should be deducted from the delivered contract price, leaving a balance of $200 in dispute. 8. The formal complaint was filed on October 5, 1964, which was within 9 months after the cause of action herein accrued. CONCLUSIONS Respondent's acceptance of the onions involved herein is undisputed. Accordingly, respondent is liable to complainant for the agreed purchas price thereof, less damages proved to have been sustained by respondent as the result of any breach of warranty on the part of complainant. Edward Dilatush & Co. v. Sacks Bros. Wholesale Fruit & Produce, Inc., 20 A.D. 626. The burden of proof with respect to the warranty, the breach, Cite as 24 A.D. 959 and the resulting damages rests upon respondent. O'Donnell Fruit Company of Pittsburgh v. Mathew Mercurio, 18 A.D. 1173. Respondent, in its submissions, has not made it entirely clear what warranty was allegedly made and breached by complainant with respect to this shipment. It appears, however, that respondent is taking the position that the onions were warranted to be free from decay on arrival at contract destination, and that evidence of the breach of this warranty by complainant is found in the results of the RPIA and Federal certificates of inspection issued at destination on July 13 and 14, 1964, respectively. Assuming, without deciding, that the warranty was made and was breached by complainant, as alleged by respondent, there still remains the question of damages. The general measure of damages for a breach of warranty, where a buyer has accepted the goods, is the difference between the market value of the goods actually delivered, at the time and place of delivery, and the market value the goods would have had at that time and place if they had met the specifications of the contract. The buyer has the burden of proving both values, by a preponderance of the evidence. Northern Farms, Inc. v. Maine State Potato Co., Inc., 23 A.D. 1148. Respondent, however, has submitted no evidence with respect to either value. Respondent, therefore, has failed to sustain its burden of proof with respect to damages resulting from the alleged breach by complainant. Accordingly, respondent's defense must fail, for lack of proof of such damages. Respondent's failure to pay the balance of the delivered contract price of $200 to complainant is a breach of the contract between the parties and is in violation of section 2 of the act. Complainant's damages stemming from such breach amount to $200, for which reparation should be awarded, with interest. ORDER Within 30 days from the date of this order, respondent shall pay to complainant, as reparation, $200, with interest thereon at the rate of 5 percent per annum from August 1, 1964, until paid. Copies of this order shall be served upon the parties. Cite as 24 A.D. 963 (No. 9987) HOMESTEAD TOMATO CO-OP v. ROSEANN'S WHOLESALE PRODUCE. PACA Docket No. 9545. Decided July 2, 1965. Acceptance-Freezing injury-Late inspection-Damages not established Results of Federal inspection made 10 days after arrival and unloading of shipment of tomatoes not determinative of breach of contract as to chilling injury prior to shipment and respondent liable for balance of contract price. Mr. Sylvester P. Adair, Homestead, Fla., and Walker & Walker, Allentown, Pa., for complainant. Mr. William C. Wickkiser, Allentown, Pa., for respondent. Miss Lenore H. Langford, 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.). Complainant filed a timely complaint seeking reparation against respondent in the amount of $1600, which is alleged to be the balance of the total purchase price of a carload of tomatoes sold to respondent in January 1964. 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, denying liability and requesting an oral hearing. An oral hearing was held at Allentown, Pennsylvania, on December 3, 1964. Both parties were represented by counsel. Evidence received on behalf of complainant consisted of the deposition testimony of two witnesses and certain exhibits, some of which were attached to the complaint. Two witnesses testified for respondent. Both parties submitted briefs. FINDINGS OF FACT 1. Complainant, Homestead Tomato Co-op, is a corporation whose address is P. O. Box 80, Princeton, Florida. 2. Respondent is an individual, Richard Dean Davis, doing business as Roseann's Wholesale Produce, whose address is 250 |