Cite as 24 A.D. 967 "Condition: Mostly firm. In most samples 2 to 34% soft and puffy, in some samples none, averaging 9%. In most samples 1 to 8% damaged by skin breakdown, in some samples none, averaging 4%. In most samples 1 to 5% decay, in many samples none, averaging 2%, chiefly Blue Mold Rot, early to advanced stages. "Grade: Meets quality requirements but fails to grade U.S. No. 1 only account condition." 7. At about 3 p.m., January 9, 1964, respondent began unloading the boxes of tangerines and oranges from the truck and placed them in his store. At about 4 p.m. that same day, respondent advised Eastwood by telephone of the results of the Federal inspection, that he had removed the tangerines from the truck and that he wanted "full protection" from complainant or complainant could dispose of them elsewhere.. Eastwood relayed this information to complainant. 8. At 6 p.m., January 9, 1964, Eastwood informed respondent by telephone that complainant would grant a 25 cents per box "policy allowance," but respondent replied he would only handle the tangerines on a consignment basis. The next day, complainant, through the broker, advised respondent that, since he had accepted by unloading, he should sell for the benefit of all concerned to minimize the loss. 9. Respondent subsequently sold the tangerines for $1,343 and remitted to complainant $983.70, the net proceeds. 10. The formal complaint was filed July 17, 1964, which was within 9 months after the cause of action herein accrued. CONCLUSIONS Respondent first contends that complainant is not the proper party to bring this action since the contract was between respondent and Eastern Marketing Service, and respondent did not receive a copy of the broker's memorandum of sale which shows complainant as the seller. The evidence establishes that complainant was the seller of the tangerines and that the broker so advised respondent during the contract negotiations. But even if this fact was not revealed to respondent during the contract negotiations, complainant would have the right to bring this action as the undisclosed principal. Vaughn-Griffin Packing Company v. Kelly & Weatherington, Inc. 24 A.D. 75. Cite as 24 A.D. 967 Complainant contends that respondent accepted the tangerines by unloading them from the truck into his store. Respondent urges that unloading did not constitute an acceptance because it was necessary to do so in order to remove the boxes of oranges in the front half of the truck and also the truck owner wanted the truck for another haul. The broker states that respondent told him the tangerines were unloaded because the trucker had to have the truck for another load. The truck owner states that this was his reason for getting the truck back. Under section 46.2 (dd) of the regulations then in effect (7 CFR 46.2 (dd), "Acceptance" includes any act by the consignee signifying acceptance of the shipment, including diversion and unloading. It is concluded that the unloading of the tangerines constituted an acceptance thereof by respondent. Respondent alleges in his answer that his obligation to complainant for the purchase price of the tangerines was discharged when the broker authorized him on January 10, 1964, to sell the tangerines for complainant's account. Complainant denies that it told the broker to have respondent sell the fruit for complainant's account. The broker states that complainant refused to allow respondent to handle the fruit on consignment and that, in accordance with complainant's instructions, he told respondent that, since he had exercised "title of ownership" by unloading, he should go ahead and work the fruit and do the best possible for all concerned to minimize damages. Respondent had the burden of proving his allegation here by a preponderance of the evidence. It is concluded that he has failed to sustain this burden. Although respondent appears to contend that complainant breached the contract herein because the tangerines were not U.S. No. 1 grade on arrival at Wilkes-Barre, Pennsylvania, respondent does not allege that the contract called for tangerines grading U.S. No.1 on arrival. Neither the broker nor complainant contends that the contract specified U. S. No. 1 tangerines. According to them, the broker's memorandum of sale reflects the terms agreed upon. The broker's memorandum of sale submitted by complainant with the formal complaint states that the basis of sale is f.o.b. and there is no mention of any grade. It is concluded that the contract between the parties was on an f.o.b. basis and there was no specification as to grade. Cite as 24 A.D. 967 In an f.o.b. sale the shipper is required to deliver produce to the carrier in suitable shipping condition, that is, in a condition which, if the shipment is handled under normal transportation service and conditions, will assure delivery without abnormal deterioration at the destination specified in the contract (7 CFR 46.41 (i) and (j)). Haines City Citrus Growers Association v. Robinson and Gentile, 10 A.D. 968. There is no evidence of abnormal transportation service and conditions. As a result, the issue is whether the deterioration of the tangerines upon arrival in Wilkes-Barre on January 9, 1964, was abnormal. The Federal inspection at Wilkes-Barre disclosed an average of 6 percent grade defects and 15 percent condition defects. Although the contract here did not, as previously stated, specify any grade, it is noted that the U.S. Standards for tangerines (7 CFR 51.1810 et seq.) allows for the U.S. Fancy, U.S. No. 1 and U.S. No. 2 grades, a total tolerance of 10 percent for defects, including not more than 5 percent for very serious damage other than that caused by dryness or mushy condition, and not more than one-half of one percent for decay. An additional tolerance of 212 percent is allowed for decay enroute or at destination. In our opinion the deterioration at Wilkes-Barre was not abnormal and, therefore, there was no breach of the warranty of suitable shipping condition. Having accepted the tangerines and having failed to prove any breach of contract on the part of complainant, respondent is liable to complainant for $916.30, the difference between the purchase price of $1,900 and the sum of $983.70 paid by respondent. The failure of respondent to pay the amount of $916.30 to complainant is in violation of section 2 of the act. Reparation should be awarded complainant in that amount with interest. ORDER Within 30 days from the date of this order, respondent shall pay to complainant, as reparation, $916.30, with interest thereon at the rate of 5 percent per annum from February 1, 1964, until paid. Copies hereof shall be served upon the parties. Cite as 24 A.D. 972 (No. 9990) CAL FRUIT v. ROCKY PRODUCE. PACA Docket No. 9606. Decided July 14, 1965. Transportation service and conditions-Abnormal-Suitable shipping condition Where carload of strawberries not accorded normal transportation service and conditions, suitable shipping condition warranty not applicable and respondent liable for balance of purchase price. Complainant pro se. Ellenson Traffic Bureau, Detroit Mich., 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.). A timely complaint was filed in which complainant seeks reparation against respondent in the amount of $439.88, alleged to be the balance of the purchase price of a carload of fresh strawberries sold and shipped to respondent in interstate commerce.. A copy of the formal complaint and a copy of the Department's report of investigation were served upon respondent, and a copy of the report of investigation was also served upon complainant. Respondent filed an answer denying liability and requesting dismissal of the complaint. Since the amount involved does not exceed $1500, 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. No additional evidence was submitted by respondent. However, respondent submitted a brief. FINDINGS OF FACT 1. Complainant is a corporation, Norden Fruit Co., doing business as Cal Fruit, whose address is 718 Market Court, Los Angeles, California. 2. Respondent is a partnership composed of Rocco Russo and Dominic Russo, doing business as Rocky Produce, whose address Cite as 24 A.D. 972 is 2489 Russell Street, Detroit, Michigan. At the time of the transaction involved herein, respondent was licensed under the Act. 3. On or about April 30, 1964, in the course of interstate commerce and by oral contract, complainant sold to respondent a carload of fresh strawberries containing 1540 trays, at $3.25 per tray, plus 1540 sun caps, at 5¢ each, plus dry ice, $50, and Transigard, $15, or a total invoice price of $5,147, f.o.b. shipping point. 4. The contract was negotiated by Harry Gilfenbain, a broker at Bakersfield, California, who issued a Broker's Standard Memorandum of Sale and forwarded copies to the parties. 5. On April 30, 1964, complainant shipped from Fullerton, California, in car REX 7636, by Railway Express, 1540 trays of fresh strawberries, consigned to Carbone Bros. at New York City. On May 2, 1964, complainant diverted the car to respondent at Detroit, Michigan, where it arrived at 8:30 p.m., May 3, 1964. The car was placed for unloading at 9 a.m., May 4, 1964. 6. On May 4, 1964, at 9:05 a.m., a Federal inspection was made which was restricted to product in all partial stacks and upper three layers of approximately 1100 trays of strawberries remaining in car REX 7636. The report of that inspection disclosed, among other things, the following: "Temperature of Product: At doorway top 43 degrees, bottom 42 degrees F. One Quarter length top 45 degrees, bottom 41 degrees F. At bunkers top 41 degrees F. "Condition:In most samples 3 to 15%, in some none, average 5% damage by soft bruises. In most samples none, in many 3 to 18%, average 3% ripe and soft. In most samples no decay, in many 3 to 15%, average 3% decay, generally Gray Mold or Leather Rot mostly advanced, some early stages. Remainder of stock ripe and firm, bright to fairly bright. Calyxes good green color." 7. On May 16, 1964, respondent sent complainant an accounting showing the resale of the strawberries in car REX 7636, accompanied by respondent's check for $4,707.12. On May 18, 1964, complainant wired respondent as follows: "RECEIVED YOUR CHECK NUMBER 877 FOR 4,707.12 THIS IS TO NOTIFY YOU THAT WE ARE NOT ACCEPT |