Cite as 24 A.D. 979 46.18, 46.20 and 46.23 thereafter). Respondent filed an answer in which it admitted these facts, waived oral hearing, and consented to the suspension of its license for 20 days, such suspension to become effective on August 9, 1965. Respondent also waived the provisions of section 10 of the act with respect to the effective date of the order. Since respondent has made restitution to the consignors listed in Finding of Fact 3, complainant has consented to the issuance of an order consistent with the terms proposed by respondent. Accordingly, pursuant to section 47.26 (b) of the rules of practice (7 CFR 47.26 (b)), such an order should be issued. ORDER Effective August 9, 1965, respondent's license under the act is suspended for a period of 20 days. The facts and circumstances shall be published. Copies of this order shall be served upon the parties. (No. 9992) TROPICANA IMPORTING COMPANY, INC. v. W. R. REYNOLDS DISTRIBUTING. PACA Docket No. 9659. Decided July 14, 1965. Rejection-Without reasonable cause-Damages Respondent's failure to take possession of truckload of bananas, after technically accepting shipment, is rejection without reasonable cause and it is liable for purchase price. Complainant pro se. Mr. Guy R. Dunn, Hapeville, Ga., 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 $1,142.66, alleged to be the unpaid purchase price of a shipment of bananas sold and delivered to respondent in interstate and foreign commerce. Cite as 24 A.D. 979 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 the transaction as alleged and denying any liability to complainant in connection with the bananas. Since the amount involved does not exceed $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, respondent filed an answering statement, and complainant filed a statement in reply. Neither party submitted a brief. FINDINGS OF FACT 1. Complainant, Tropicana Importing Company, Inc., is a corporation whose address is 215 North 11th Street, Tampa, Florida. 2. Respondent is an individual, William Robert Reynolds, doing business as W. R. Reynolds Distributing, whose address is Georgia State Farmers Market, Forest Park, Georgia. At the time of the transaction involved herein, respondent was licensed under the Act. 3. On or about May 21, 1964, in the course of foreign and interstate commerce and by oral contract, complainant sold to respondent a truckload of bananas which had been received from Ecuador at the Port of Tampa, Florida, on May 21, 1964, for a total invoice price of $1,142.66, f.o.b. Tampa, Florida. 4. Complainant shipped on May 21, 1964, from Tampa, Florida, to respondent at Forest Park, Georgia, 377 stems of bananas designated as "Specials," and weighing 30,070 pounds. 5. The truckload of bananas arrived at respondent's place of business at 8:30 a.m., May 22, 1964. Respondent refused to unload the bananas at that time, and asked the trucker to return the load to him on Sunday, May 24, 1964. On that date, the load of bananas was again tendered to respondent, and respondent refused to take delivery of the shipment. 6. On or about May 26, 1964, the carrier, Terminal Transport Co., Inc., Atlanta, Georgia, sold the load of bananas to Whitco Produce Company at Dalton, Georgia, for $475, after having first contacted both parties concerning disposition of the shipment and finally notifying them that the bananas would be sold for the carrier's expenses. Cite as 24 A.D. 979 7. Respondent has not paid complainant the purchase price of the bananas, or any part thereof. 8. The formal complaint was filed on November 10, 1964, which was within 9 months after accrual of the cause of action herein. CONCLUSIONS In his answer to the formal complaint, respondent "emphatically denied" that he agreed to purchase the load of bananas in question from complainant, and avers that the telephone conversation between the parties was to the effect that when the bananas arrived at Georgia State Farmers Market, respondent would inspect them and if they were of the quality that he could sell, he would purchase the bananas. Respondent contends that he never agreed on any price to be paid for the bananas. Respondent admits receiving from complainant an invoice for the bananas, but states that complainant was notified by telephone "that he did not accept the bananas and therefore knew that the invoice should not have been sent to him." The burden is upon complainant, of course, to establish by a preponderance of the evidence the allegations of its complaint, including the alleged sale of the bananas to respondent. In our opinion, a preponderance of the evidence of record supports the allegations of the complaint. Attached to the report of investigation as Exhibit No. 8 is a copy of a report of a personal investigation of this controversy conducted by Department investigators at respondent's place of business on September 22, 1964. According to this report, respondent told the investigators that the shipment of bananas arrived at his place of business on May 22, 1964, and that the fruit was green and in good condition and the pulp temperature was 58° F., "in accordance with his shipping instructions." Respondent did not deny having purchased the bananas. Respondent stated that he told the truck driver he could not use the load at that time since his storage rooms were full, and he instructed the driver to return the load to him on Sunday, May 24, 1964. Respondent stated that the load was pulled away from his loading platform and parked on the opposite side of the building, where it stayed the remainder of the day and the following day, May 23, 1964. Respondent stated that he checked the load over the weekend and found that proper refrigeration was not being maintained, that on Sunday, May 24, the bananas showed a pulp temperature of 72°, and he said Cite as 24 A.D. 979 he told the driver of the truck that the temperature was not being maintained in accordance with his instructions. The investigators were told by respondent that he called complainant's Sam Pupello by telephone on May 24 and advised him that respondent could not use the bananas as they were ripe and soft due to improper refrigeration. Respondent was asked whether complainant had agreed to accept the rejection by respondent, but he did not reply to this inquiry. Respondent stated finally that the load of bananas was subsequently moved from his place of business, but he did not know the final destination. The carrier, Terminal Transport Co., Inc., furnished the Department with a copy of its record of handling the shipment of bananas in question. The record substantially confirms the statements made by respondent to the Department investigators approximately 4 months after the transaction in question. The record indicates that shipping instructions were to maintain the temperature at 56° to 58° at all times, to be checked every 3 or 4 hours with a thermometer, and to have vents closed and ticker running to destination. The record further shows that the designated temperature was maintained throughout the transit period and that the load was iced eight times. The carrier's report further shows that on May 25, 1964, its claim agent talked to Robert M. Baker, an employee of respondent, and told him that complainant said the load of bananas belonged to respondent; that Baker stated respondent was in the hospital and had told him on Friday, May 22, not to touch this load; that Baker stated he had a full house and did not have a single room empty; and that he told Baker he was going to sell the load of bananas, whereupon Baker said, "Go ahead, I just work hereMr. Reynolds told me not to touch the load and I'm not going to." On the basis of the evidence, we conclude that complainant sold and respondent purchased the load of bananas, as alleged in the complaint. It is further concluded that complainant fully performed its part of the contract. Since respondent failed to notify complainant within 8 hours that he was rejecting the bananas, he is deemed to have accepted them. According to respondent's own statement to the Department, the bananas upon arrival were green and in good condition, and the pulp temperature was 58°, pursuant to respondent's shipping instructions. It must be concluded, therefore, that respondent's failure to take possession of the bananas, after having technically Cite as 24 A.D. 983 accepted them, amounted to a rejection without reasonable cause, in violation of Section 2 of the Act. There is no indication that the carrier received from the resale more than its expenses incurred in connection with the load of bananas, or that complainant has been paid any amount on account of the transaction. Under the circumstances, complainant's loss as a result of respondent's unlawful rejection of the bananas is the purchase price of the fruit. Complainant should be awarded reparation against respondent in the amount of $1,142.66 with interest. ORDER Within 30 days from the date of this order, respondent shall pay to complainant, as reparation, $1,142.66, with interest thereon at the rate of 5 percent per annum from July 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. 9993) BLUE RIBBON SALES COMPANY v. NARCISE PRODUCE, INC. PACA Docket No. 9619. Decided July 15, 1965. Suitable shipping condition-Tomatoes-Breach-Damages Suitable shipping condition warranty breached although transportation service and conditions may have been abnormal where discoloration in tomatoes caused at time of packing, and damages allowed for difference between contract price and resale proceeds plus expense of resale preparation. Williams, Salomon & Kenney, Miami, Fla., for complainant. 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 |