STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROY AMERSON, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 80-1613A

) BRUCE B. BENWAY and KATHY E. ) BENWAY, d/b/a K & B ENTERPRISES; ) and AMERICAN DRUGGISTS' )

INSURANCE COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 22 October 1980 at Clearwater, Florida.

APPEARANCES

For Petitioner: Hugh Toler

Post Office Box 202 Terra Ceia, Florida

For Respondent: Leonard M. Vincente, Esquire

302 South Garden Avenue Clearwater, Florida 32516

By Complaint dated 13 May 1980 Roy Amerson Inc., Petitioner, seeks a determination that Bruce B. Benway, et al., Respondents, owe Petitioner

$1,494.90 for agricultural products received from Petitioner and not paid for.

At the hearing Petitioner presented a copy of invoice No. 35159 (Exhibit 1) listing stock delivered to Respondent and the ledger card (Exhibit 2) showing the account of Respondent with Petitioner. Respondent presented four witnesses to testify regarding the condition of the stock when delivered. Absent contradictory testimony there was no dispute regarding the facts involved in this transaction.

FINDINGS OF FACT

1. K & B Enterprises, Respondent, purchased plants from Roy Amerson, Inc., Petitioner, and they were delivered to Respondent on February 19, 1980.

   
   

2. Respondent had ordered Bottlebrush and Cuban laurel (Ficus Nitida) packaged in wire baskets to protect root ball in shipment. Upon arrival Respondent noted that the wires were mangled and some root balls appeared separated from the roots.

3. Before the trees were unloaded Mrs. Benway telephoned the salesman for Petitioner and told him about the condition of the trees. The salesman advised her to accept the trees, water them, and they (Amerson) would make an allowance for the damage. This, he said, would be better and cause less damage to the trees than if they were sent back on the truck that brought them.

   
   

4. The driver was requested by Mr. Benway to note the condition of the trees on the invoice accompanying the shipment (Exhibit 1). No such notation was made. The driver did note the date of delivery.

   
   

5. Respondent Benway acknowledged receipt of the merchandise by signing Exhibit 1 below the following statement printed near the bottom of Exhibit 1:

   
   

   STOCK MAY BE REFUSED AT TIME OF DELIVERY FOR A DEFINITE REASON, BUT ONCE SIGNED FOR CUSTOMER ASSUMES RESPONSIBILITY FOR TOTAL AMOUNT OF INVOICE. OPEN ACCOUNTS PAYABLE BY THE 10TH OF THE MONTH. 1 1/2 PERCENT CHARGE ADDED IF NOT PAID BY THE 25TH WHICH IS ANNUAL RATE OF 18 PERCENT.

   
   

6. Respondent is a plant retailer and landscape contractor. After accepting the February 19, 1980 delivery the Cuban laurel was planted as were the other plants.

   
   

7. Attempts to settle the dispute with Petitioner's salesman were unsuccessful. Nine of the Bottlebrush died but all of the Cuban laurel have survived. At the instruction of the salesman these plants were watered but not trimmed or fertilized.

   
   

8. Respondent paid for the other plants received on this invoice and for the damaged plants as they have been sold. As of the date of the hearing the balance owed on the stock delivered on Exhibit 1 was $1,494.90.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings.

   
   

10. This dispute is governed by the provisions of the Uniform Commercial Code, (UCC), Ch. 672, Florida Statutes. The contract, Exhibit 1, complies with the Statute of Frauds provisions of Section 672.201(1), Florida Statutes, in that the contract is for a sum exceeding $500, is in writing, and is signed by the party to be charged. Section 672.202, Florida Statutes, relates to modification of contract and provides:

    
    

    Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented:

    1. By course of dealing or usage of trade (s. 671.205) or by course of performance

       (s. 672.208); and

    2. By evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.

       
       

11. At the time Exhibit 1 was signed by Benway, a conversation had been held with petitioner's representative and Benway did not agree that he would pay the contract price for the damaged plants. The general rule is that parole evidence may not be admitted to contradict or vary the terms of a valid written Instrument. Lyng v. Bugbee Distributing Co., 182 So.801 (Fla. 1938); Friendly Ford, Inc. v. Avis Rent-A-Car System, Inc., 293 So.2d 746 (Fla. 3rd DCA 1974). Here the written agreement did not represent the final understanding and intent of the parties.

    
    

12. Section 672.607, Florida Statutes, relates to the effect of acceptance of goods and provides in pertinent part:

    
    

    (2) Acceptance of goods by the buyer precludes rejection of the goods accepted

    and if made with knowledge of a nonconformity cannot be revoked because of it unless the acceptance was on the reasonable assumption that the nonconformity would be seasonably cured but acceptance does not of itself impair any other remedy provided by this chapter for nonconformity. (Emphasis added.)

    
    

13. At the time Exhibit 1 was signed by Respondent he was aware of the nonconformity of the goods delivered and could have rejected these plants pursuant to the terms of the contract. He also had been told by petitioner's agent that if he accepted these plants an adjustment would be made and that it would be better for all, and result in less damage to the plants, if they were not returned to the seller.

    
    

14. Acceptance by the buyer at this time was on the reasonable assumption that credit would be given in the form of a price reduction for the damaged trees.

    
    

15. In Uniform Commercial Code Comment, (UCCC), Vol. 19A Florida Statutes, Annotated, 672.2-207, it is stated:

Under subsection (2) acceptance of goods precludes their subsequent rejection. Any return of the goods thereafter must be by way of revocation of acceptance under the next section . Revocation is unavailable for a nonconformity known to the buyer at the time of acceptance, except on the reasonable assumption that the nonconformity would be seasonably cured.

16 The next section, Section 672.608, Florida Statutes, provides in pertinent part:

1. The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it:

   1. On the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured . . . .

2. Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.

1. The testimony presented was uncontradicted that Respondent accepted the plants on the reasonable assumption that the contract price of those plants below standard would be adjusted. It is also apparent, although no testimony in this regard was presented, that the parties attempted to negotiate their differences but could not reach terms acceptable to both.

   
   

2. From the foregoing it is concluded that petitioner shipped plants to Respondent which upon arrival were damaged; that this damage was recognized by Respondent and made known to Petitioner; that Petitioner's agent encouraged Respondent to conditionally accept the plants; that this conditional acceptance was not written in the contract; and that Respondent's refusal to pay for these plants and offer to return them to Petitioner constitutes a revocation of acceptance made known to Petitioner. It is further concluded that no evidence was presented regarding the dollar value of the nonconforming plants but the total amount in dispute is insufficient to warrant the cost of another hearing. It is therefore

RECOMMENDED that Respondent be credited for the nine Bottlebrush that died in an amount of $351.00 (9 x $39), that the price of the Cuban laurel be reduced slightly and that Respondent pay Petitioner $900.00 in settlement of all claims involving this dispute.

Entered this 7th day of November, 1980.

K. N. AYERS Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1980.

OPIES FURNISHED:

Mr. LeRoy F. Amerson, Jr. Mr. Hugh Toler

Post Office Box 202

Terra Ceia, Florida 33591

Leonard M. Vincente, Esquire

302 South Garden Avenue Clearwater, Florida 32516

Mr. L. Earl Peterson, Chief Bureau of License and Bond Division of Marketing Department of Agriculture

and Consumer Services Mayo Building

Tallahassee, Florida 32301

Docket for Case No: 80-001613

Orders for Case No: 80-001613