Cite as 24 A.D. 963 Race Street, Catasauqua, Pennsylvania. At the time of the transaction involved herein, respondent was licensed under the Act. 3. On January 21, 1964, contemplating shipment in interstate commerce, complainant sold to respondent a carload of mature green tomatoes, of various sizes, U.S. Combination grade, at an agreed price of $4 per carton for size 6x6 and larger and $3 per carton for size 6x7, plus icing charges, or a total invoice price of $2,918.50, f.o.b. Florida shipping point. 4. The contract was negotiated by Mike De Cristino, a broker of Homestead, Florida, who issued a broker's memorandum of purchase and sale and forwarded copies to the parties. 5. On January 21, 1964, complainant shipped from Princeton, Florida, to respondent at Catasauqua, Pennsylvania, in car FHIX 40500, 800 cartons of mature green tomatoes which were certified as U.S. Combination grade. 6. The carload of tomatoes arrived at Catasauqua, Pennsylvania, on or about January 27, 1964. Respondent accepted the shipment and promptly unloaded the tomatoes. Three hundred fifty cartons were placed in respondent's warehouse. Three hundred cartons of the tomatoes were sent by truck to Ajax Fruit and Produce Company, Philadelphia, Pennsylvania. One hundred cartons were delivered to Trimble Brothers Fruit and Produce at Bethlehem, Pennsylvania, and fifty cartons were delivered to Sam Pontino at Norristown, Pennsylvania. 7. On February 7, 1964, at 9:45 a.m., a Federal inspection was made of aproximately 400 lugs of tomatoes which were stacked in respondent's warehouse. The condition of these tomatoes as revealed by the inspection certificate was as follows: "Average approximately 5% breakers, 5% turning, 10% pink, 15% light red, 30% red. From 6 to 22%, average 15% damage by sunken discolored areas, occurring over shoulders of tomatoes. Decay ranges from 10 to 68%, average 35% Alternaria Rot, some Bacterial Soft Rot following, in all stages." 8. Respondent paid complainant $1,318.50 in connection with the transaction, or $1600 less than the contract price of the tomatoes. No further payment has been made by respondent to complainant in connection with this shipment. Cite as 24 A.D. 963 9. The formal complaint was filed on May 27, 1964, which was within 9 months after accrual of the cause of action herein. CONCLUSIONS It is respondent's position in this case that complainant breached the contract in shipping a carload of tomatoes which had been subjected to chilling injury in the field or prior to shipment, resulting in rapid deterioration of the tomatoes after arrival at destination. The inspection relied upon by respondent of about 400 lugs of tomatoes in respondent's warehouse was not made until 10 days after arrival of the tomatoes in question. We consider this inspection too remote in time to establish with any degree of certainty that complainant breached the contract. Moreover, about 450 cartons of the tomatoes were shipped out of the city by respondent soon after arrival, and there is no evidence of how such tomatoes were handled or under what conditions they were maintained after leaving respondent's place of business. Having accepted the tomatoes, respondent became liable to complainant for the purchase price thereof, subject to his right to any proven damages resulting from any breach of the contract on the part of complainant. There is a serious doubt in our minds as to whether complainant breached the contract, but even if a breach by complainant could be established from the evidence, there is insufficient evidence in the record with respect to respondent's damages. The measure of damages for a breach of warranty is the difference between the market value of goods meeting contract requirements and the market value of the goods delivered, both values being those at the time and place of delivery. The burden of proof rests upon the buyer to establish both values. Respondent in this case has submitted no evidence of either value. It is concluded that respondent has failed to sustain his burden of proof with respect to damages. Therefore, respondent's failure to pay complainant the total agreed purchase price of the tomatoes was in violation of Section 2 of the Act. Complainant should be awarded reparation in the amount of $1600, with interest. Cite as 24 A.D. 966 ORDER Within 30 days from the date of this order, respondent shall pay to complainant, as reparation, $1600, with interest thereon at the rate of 5 percent per annum from March 1, 1964, until paid. The facts and circumstances as set forth herein shall be published. Copies of this order shall be served upon the parties. (No. 9988) JOE BELSON v. HOOSIER POTATO CO., INC. PACA Docket No. 9147. Decided July 6, 1965. Reconsideration-Petition for, dismissed As the order of December 15, 1964, is supported by the evidence and the law applicable thereto, respondent's petition for reconsideration is dismissed. Decision by Thomas J. Flavin, Judicial Officer ORDER UPON RECONSIDERATION In this reparation proceeding under the Perishable Agricultural Commodities Act, 1930, as amended (7 U.S.C. 499 et. seq.), an order was issued December 15, 1964, awarding reparation to complainant. A copy of the order was served upon each of the parties on December 17, 1964. Respondent filed a petition for reconsideration of that order on December 28, 1964. A copy of the petition was served upon complainant and he filed an answer thereto on February 15, 1965. Respondent contends in its petition that the order of December 15, 1964, is in error in concluding that respondent failed to sustain the burden of proof as to the damages resulting from complainant's breach of warranty. Respondent also renews the defense in its amended answer that there was no valid contract of sale between these parties because complainant did not inform respondent during the contract negotiations as to the transit history of the potatoes. Although this defense was not specifically Cite as 24 A.D. 967 discussed in the prior order, it was considered to be without merit in view of the conflicting evidence. Upon reconsideration, it is concluded that respondent has failed to sustain its burden of proving either damages or invalidity of the contract and that the order of December 15, 1964, is supported by the evidence and the law applicable thereto. Accordingly, respondent's petition is hereby dismissed. The reparation awarded in the order of December 15, 1964, shall be paid within 30 days from the date of this order. Copies hereof shall be served upon the parties. (No. 9989) WAVERLY GROWERS COOPERATIVE v. E. C. MITCHELL. PACA Docket No. 9547. Decided July 6, 1965. Acceptance-Failure to establish novation-Suitable shipping condition -Undisclosed principal-Liability Having accepted f.o.b. shipment of tangerines by unloading and having failed to prove breach of warranty of suitable shipping condition or a new agreement, respondent liable to undisclosed principal for balance of contract price. Walker, Walker & Rabe, Winter Haven, Fla., for complainant. 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 quantity of tangerines shipped 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 served upon complainant. Respondent filed an answer denying liability. Since the amount involved does not exceed $1,500, the issues are submitted under Cite as 24 A.D. 967 the shortened procedure provided in the rules of practice (7 CFR 47.20). Pursuant to such procedure, respondent filed a brief. FINDINGS OF FACT 1. Complainant, Waverly Growers Cooperative, is a corporation whose address is Waverly, Florida. 2. Respondent, Frederic Edward Mitchell, is an individual doing business as E. C. Mitchell, whose address is 139-143 South Pennsylvania Avenue, Wilkes-Barre, Pennsylvania. At the time of the transaction involved herein, respondent was licensed under the act. 3. On or about January 7, 1964, in the course of interstate commerce, complainant sold to respondent 500 boxes of Flordia tangerines for a total contract price of $1,900, f.o.b. Waverly, Florida. Mr. Palmer Eastwood of Eastern Marketing Service, Bartow, Florida, as broker, negotiated the contract between complainant and respondent. 4. On January 7, 1964, 500 boxes of tangerines were loaded by complainant on a truck employed by respondent and were shipped from Waverly, Florida, to respondent in Wilkes-Barre, Pennsylvania. A joint Federal-State inspection made at 2 p.m., January 7, 1964, prior to shipment, certified that the tangerines graded U.S. No. 1 with no decay. At the time of loading by complainant, the truck contained 300 boxes of oranges purchased by respondent elsewhere. 5. The truck arrived at Wilkes-Barre, Pennsylvania, at about 5:30 a.m., January 9, 1964. At about 9 a.m., January 9, 1964, respondent advised Eastwood that the tangerines had arrived showing trouble and that he was going to order a U.S. Department of Agriculture inspection. Eastwood relayed this information to complainant. 6. At 2:20 p.m., January 9, 1964, a Federal inspection of the tangerines was made. The certificate of inspection, in pertinent part, reads: "Temperature of product: At side doorway, bottom 45°F, top 47°F. "Quality: Clean, generally well formed, well colored, fairly smooth to smooth texture. Average 6% grade defects, chiefly scars and pulled stems. |