Cite as 24 A.D. 972 ING THIS AMOUNT IN FULL PAYMENT. THIS CAR WAS SOLD ON AN FOB BASIS REMIT BALANCE OF PAYMENT 439.88 WITHIN 72 HOURS OR WE WILL BE FORCED TO TAKE ACTION." No further payment has been made by respondent in connection with the transaction. 8. The formal complaint was filed on August 24, 1964, which was within 9 months after accrual of the cause of action herein. CONCLUSIONS The parties are agreed as to the terms of the contract, which was on an f.o.b. shipping point basis. Respondent admits in its answer receiving the carload of strawberries, on or about May 4, 1964, but denies that complainant shipped the kind, quality, grade, and size called for by the contract. Respondent further contends that it complained to the broker concerning the condition of the strawberries on the date of arrival, and was instructed by the broker to "clean up the car" and adjustment would be obtained later from the shipper. The broker has denied this, however. The Broker's Standard Memorandum of Sale gives no indication of the kind, quality, grade, and size of strawberries contemplated by the parties to the contract. The memorandum simply lists 1540 Berries at $3.25, on an f.o.b. basis, plus sun caps at 50 each. Neither party took any exception to the specifications as set forth in the broker's Memorandum of Sale. Since respondent accepted the strawberries, it is liable to complainant for the contract price thereof, less any damages respondent can show it sustained as a result of any breach of the contract on the part of complainant. Under the f.o.b. contract, complainant impliedly warranted that the strawberries were in suitable shipping condition; that is, that they were in a condition which, if handled under normal transportation service and condition, would assure delivery without abnormal deterioration at the destination specified in the contract. The destination was Detroit, Michigan, and, according to the Federal inspection report quoted in Finding of Fact 6, the berries on arrival showed as high as 15% and an average of 5% damage by soft bruises, and as high as 15% and an average of 3% decay, generally Gray Mold or Leather Rot, mostly advanced, some in early stages. Cite as 24 A.D. 972 In view of the condition of the strawberries on arrival, it is important to determine whether normal transportation service and conditions prevailed during the transit period. It appears that transit time and the icing record were normal. According to Agriculture Handbook No. 195, entitled "Protection of Rail Shipments of Fruits and Vegetables," published in July 1961, the desired transit temperature for fresh strawberries is 32° to 35° F. Low temperatures will control both ripening and decay. Gray Mold and Leather Rot are controlled at temperatures under 40°. A Transigard was installed in the car involved herein at shipping point for the purpose of keeping a constant record of the temperature during transit. Complainant submitted in evidence a part of the Transigard tape and respondent submitted the remainder of the tape. It appears from the tape that for a substantial part of the transit time, the temperature in the car was in excess of 40° and as high as 60° at times. There is attached to the report of investigation a copy of a letter to respondent's representative, dated July 13, 1964, from Transigard, Inc., which states that, "Starting at approximately 36 hours and ending at 101 hours, the indicated temperatures are above those recommended for the particular commodity [strawberries] (see U.S.D.A. Handbook #195.)" On the basis of the evidence, we conclude that the strawberries involved herein were not accorded normal transportation service and conditions. Therefore, the suitable shipping condition warranty is not applicable here and may not be relied upon by respondent. Respondent has submitted no other evidence of a breach of the contract on the part of complainant. In the absence of any evidence of a breach by complainant, respondent is liable for the full purchase price of the strawberries. Respondent's failure to pay the total agreed purchase price is in violation of Section 2 of the Act. Complainant should be awarded reparation against respondent for the unpaid balance of $439.88, with interest. ORDER Within 30 days from the date of this order, respondent shall pay to complainant, as reparation $439.88, with interest thereon at the rate of 5 percent per annum from June 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. Cite as 24 A.D. 976 (No. 9991) In re TRACK SIDE PRODUCE DISTRIBUTORS, INC. PACA Docket No. 9811. Decided July 14, 1965. Failure to account truly and correctly-Failure to remit proceeds Respondent admitted the allegations of the complaint and consented to suspension of license for a period of 20 days. Miss Daphne M. Anderson for complainant. Respondent pro se. Decision by Thomas J. Flavin, Judicial Officer PRELIMINARY STATEMENT This is a disciplinary proceeding under the Perishable Agricultural Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.), instituted by a complaint filed on June 9, 1965, by the Director, Fruit and Vegetable Division, Consumer and Marketing Service, United States Department of Agriculture. It is alleged in the complaint that respondent repeatedly and flagrantly violated section 2 and violated section 9 of the act by failing to account and make payment truly and correctly of the net proceeds realized from the sale of perishable agricultural commodities consigned to it in interstate commerce, and by failing to keep adequate records. Respondent filed an answer on July 7, 1965, admitting the allegations of the complaint. Respondent's answer also waived oral hearing, waived the provisions of section 10 of the act with respect to the requirement of a 10-day period before an order can take effect, and consented to the issuance of an order suspending respondent's license for 20 days. Respondent's admissions and consent to the issuance of such order were conditioned upon said suspension becoming effective on August 9, 1965. Complainant has filed a consent to the issuance of such an order. FINDINGS OF FACT 1. Respondent, Track Side Produce Distributors, Inc., is a Wisconsin corporation whose address is 115 South 2nd Street, Milwaukee, Wisconsin. The officers, directors, and stockholders Cite as 24 A.D. 976 of respondent corporation are Arthur J. Anderson, president and owner of 50 percent of the stock; Eli Drobac, secretary-treasurer and owner of 50 percent of the stock; Winifred Anderson, vice president and Dorothy Drobac, director. 2. Pursuant to the licensing provisions of the act, license No. 40207 was issued to respondent on May 7, 1936. This license has been renewed annually, presently is in effect, and is next subject to renewal on or before May 7, 1966. 3. During the period September 1961 through February 1965, respondent received in interstate commerce, on consignment, 33 lots of perishable agricultural commodities, and accepted and sold these commodities, but failed to account truly and correctly and make full payment promptly of the net proceeds realized as set forth in the complaint and in the summary below. 4. During the period September 1961 through February 1965, respondent failed to keep such accounts, records and memoranda as would fully and correctly disclose all transactions involved in its business, in that respondent: (1) consistently and continually failed to record in its receiving book the names and addresses of all shippers; (2) consistently and continually failed to record in its receiving book whether the produce was purchased, consigned or received on joint account; (3) consistently and continually failed to record in its receiving book the disposition of produce received; (4) failed to assign lot numbers to some lots of consigned produce and to each purchased shipment of similar produce on hand at the same time; (5) repeatedly failed to enter lot numbers upon the sales tickets at the time of sale; and (6) failed to obtain evidence of claimed dumping or destruction of consigned produce. 5. Pursuant to the provisions of Section 9 (b) of the Administrative Procedure Act (5 U.S.C. 1008i (b)), respondent was afforded several opportunities to demonstrate or achieve compliance with all lawful requirements of the act relating to the allegations contained in the complaint, but it failed to do so. CONCLUSIONS By reason of the facts set forth in Finding of Fact 3, respondent has repeatedly and flagrantly violated section 2 of the act (7 U.S.C. 499b), as defined by the Regulations issued pursuant thereto (7 CFR 46.2 (y) (2) prior to August 15, 1963; 7 CFR 46.2(z) (2) thereafter). By reason of the facts set forth in Finding of Fact 4, respondent violated section 9 of the act (7 U.S.C. 4991), and the Regulations issued pursuant thereto (7 CFR 46.17, 46.19 and 46.22 prior to August 15, 1963; 7 CFR |