W. MADDOX, JOHN MADDOX, and ) GARY HOGAN, d/b/a M&H PRODUCE, )
Respondent. )
Consistent with the Order Granting Continuance entered by the undersigned on November 6, 1987, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Ft. Myers, Florida, on November 24, 1987. The issue for consideration was whether the Respondents, individually or collectively, were indebted to the Petitioner, and if so, in what amount, for produce sold by Petitioner to Respondents.
Petitioner: David K. Oaks, Esquire
On or about January 12, 1987, the Petitioner, T. J. Chastain, filed a complaint with the Department of Agriculture and Consumer Services alleging that the Respondents herein were indebted to him in the amount of $4,225.00 for purchase of approximately 84,500 pounds of watermelons on May 28, 1986. On or about April 21, 1987, the Respondents, through counsel, filed an Answer denying the claim and on May 14, 1987, the case was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. The case was initially assigned to Hearing Officer Linda M. Rigot who on June 17, 1987, set the case for hearing in Ft. Myers on August 19, 1987. There were, however, several continuances and amendments to the Notice of Hearing and, on November 6, 1987, the case was ultimately set for hearing on November 24, 1987, at which time it was held, as scheduled, by the undersigned to whom it had been transferred in the interim.
At the hearing, Petitioner testified in his own behalf and introduced Petitioner's Exhibit 1. Respondent presented the testimony of William P. Douberly, Jr., a buyer of produce, and introduced Respondent's Exhibit A. Respondent's Exhibit B for Identification was offered but not admitted.
Neither party submitted proposed Findings of Fact.
On or about May 28, 1986, Petitioner, T. J. Chastain, was engaged in the business of farming in Punta Gorda, Florida. One of his crops was watermelons. William P. Douberly, Jr., representing himself to be a licensed agricultural dealer, came to him and asked to buy what watermelons he had for sale. Petitioner and Mr. Douberly entered into negotiations for the purchase and Petitioner offered to sell the melons for 5.5 cents per pound. After some deliberation, the parties orally agreed to a sale at 5 cents per pound. Nothing was reduced to writing. The agreement was quite loose and much was left unstated. Costs of freight and other costs incidental to the sale were not mentioned by either party.
It was understood, according to Petitioner, that Respondent would provide transport and, in fact, Douberly did contract with a trucker to provide transport of the melons to the ultimate delivery location. Petitioner claims that Mr. Douberly, the only individual with whom he dealt, looked over the watermelons prior to agreeing to the purchase. No conditions or qualifications were placed on the melons by Mr. Douberly and Petitioner contends that a requirement the melons be #1 grade was not stated.
Petitioner had his helpers load the truck provided by Mr. Douberly who, according to Petitioner, remained on the scene over the three to four hours it took to put the melons on the truck and, he contends, Douberly saw them being loaded. Mr. Douberly, on the other hand, contends that he observed only the first half of the first truckload being placed on the truck. Thereafter, because he had other things to do, he left and did not return until the next day at which time the original truck was fully loaded as was the second truck he had provided. He contends, therefore, that he saw only one quarter of the entire load placed on the trucks.
According to Mr. Chastain, when the first truck was loaded Mr. Douberly asked Petitioner if he wanted to follow the truck to the scale to see how much the load weighed. Mr. Chastain declined, stating that Mr. Douberly should weigh the melons and bring him back the weigh ticket along with payment for the load. He contends that when Mr. Douberly came back that same day with the ticket, he indicated that he wanted another load, alleging that the first load was somewhat overweight and some of the melons had been removed from the truck, to be placed on a second truck as the first part of a second load.
Mr. Chastain relates that when the Respondent asked for the second truckload of melons, they engaged in no discussion about any change in the terms of sale. Mr. Chastain assumed that the purchase price would still be 5 cents per pound and the same procedure was to be followed for the second load.
Though Respondent was to have paid for the first load after the weight was calculated, Petitioner assumed that when the second load was weighed, the Respondent would come back and pay for both. In fact, Mr. Douberly did not return after the second truck left and did not pay for either load. Numerous attempts to locate him were unsuccessful until ultimately, Mr. Chastain was able to reach him through Douberly's father. Notwithstanding his request for payment, Mr. Chastain did not receive any communication regarding the two loads of melons until some time later when by undated letter from Mr. Douberly, he received a check for slightly over $250.00 in full payment for all the melons.
This letter described the condition of the melons at the time they were inspected by a federal inspector and indicated that 43 percent of at least the first shipment was defective in some fashion or another. The letter also indicated that Mr. Chastain was charged freight on both shipments at the rate of
4.4 cents per pound on the good melons sold.
The only evidence to show the total weight of the two shipments consists of the letter from Mr. Douberly, Respondent's agent, indicating that the first load weighed 46,250 pounds and that the second weighed 29,990 pounds. This admission of weight by Respondent's agent is dispositive of any issue of the total weight involved and it is found that the total weight of melons shipped was the total of the two, 76,240 pounds. A federal inspection certificate dated June 2, 1986, reflecting an inspection which took place in Joplin, Mo., indicates that the applicant, Millsap Produce, counted 39,500 pounds. This is less than one of Mr. Douberly's load counts and more than the second. Since it cannot be shown which load was involved, or if both were involved in that inspection, as was indicated above, the letter from Mr. Douberly is considered the best evidence of the number of pounds of melons sold by Mr. Chastain to the Respondent. It must be noted that as of the time of the inspection, the refrigeration unit on the truck was inoperative.
Returning to the description of the melons inspected by federal officials, the load was described as containing mature, clean, fairly well to well shaped melons. The flesh was described as having a good color with varying percentages of defects such as scars, misshapes, overmaturity, sunburn, and bruises, with 2 percent decay. Notwithstanding this, the melons were graded as meeting quality requirements but not coming up to US Grade #1 standards only because of their condition.
Because he inspected only one quarter of the total melon shipment, which he graded as US Grade #1 at the time, Mr. Douberly contends that the Petitioner must have substituted substandard melons for the remaining melons in order to bring the overall grade of the shipment down below standards. He admits that the shipment was picked up from Mr. Chastain's field with the truck parked beside the road, but alleges that since he was not present throughout the entire loading process, Mr. Chastain had the opportunity to bring in substandard melons. Mr. Chastain denies bringing in any other melons and it is found there was no substitution.
Mr. Chastain further indicates that nothing was discussed between him and Mr. Douberly regarding the necessity that the entire shipment be #1 grade fruit. He at no time agreed to guarantee the quality of melons and at no time did he agree to be responsible for the cost of transportation if the melons were determined to be of insufficient quality for sale at destination. This was never mentioned. Mr. Chastain pointed out, that in the industry, shipments of produce, where the purchasing broker provides transport, are FOB point of loading sales. No evidence to contradict this was presented by Respondent and it is so found. There were no alternative arrangements made or suggested by the buyer and Mr. Chastain indicated that it is his practice to always sell FOB point of loading. This was a cash sale, according to Chastain, and he expected to be paid by Douberly that night after weighing or, at the latest, the next morning when the second load was weighed.
Mr. Douberly contends that the terms of the agreement between him and Mr. Chastain called for him to buy two loads of watermelons at 5 cents per pound pending delivery. The term, "pending delivery", means that the melons were of questionable quality and that Mr. Douberly would pay the grower depending upon
how much the melons sold for when delivered. However, this contention is not supportable. It is highly unlikely, and denied by Mr. Chastain, that as grower, he would sell melons for the low price of 5 cents per pound to a buyer who provided the transportation and still agree to assume the risk of spoilage and transportation when he had no control over the method of transport and the time of sale.
Mr. Douberly denies having seen the loading of any more than the first half of the first truck. Though he had the opportunity to do so, he did not inspect the melons being placed aboard the trucks nor did he inspect the field. He did, however, examine the first half of the first load, which came out of the same fields and, by his own admission, graded them as US #1.
When Mr. Hogan advised Mr. Douberly several days later that there was a problem with the melons, Mr. Douberly claims he tried four or five times while he was still in Petitioner's area, to contact Chastain and left messages for him to call back. Even though, he claims, Mr. Chastain knew where he was staying and had his phone number, no calls were returned. On the other hand, Mr. Chastain indicated he never heard from Mr. Douberly after the second truck was loaded and his efforts to find him to collect his money were unsuccessful. It is unlikely that Mr. Chastain, who had not been paid, would have allowed from May 28 to on or after June 2, some five days or so, to go by without trying to contact his buyer if he knew where he was. More likely, Mr. Douberly was no longer in the area.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.
Under the provisions of Section 604.21, Florida Statutes, any person claiming damage by the breach of conditions of an agreement given by a licensed dealer in agricultural products may file a complaint against the dealer. If the dealer denies the allegation, after preliminary investigation, he may demand a hearing under Chapter 120.
In the instant case, the evidence, as well as all permissible inferences and presumptions drawn therefrom, clearly shows that Petitioner sold two loads of watermelons to the Respondent, through Respondent's agent, for 5 cents per pound with Respondent to provide the transportation at his own expense. The agent was given the opportunity to inspect the melons in the field prior to purchase and again while they were being loaded on the trucks after the purchase. By the agent's own admission, the 25 percent of the melons he inspected were of US #1 grade. That he failed to avail himself of the opportunity to inspect the remainder does not justify a finding that they were substandard or that Petitioner improperly substituted bad melons for good. Further, it must be noted that though the trucks supplied by the Respondent were supposed to be refrigerated, the federal inspection report showed that on at least one, the refrigeration unit was inoperative.
Petitioner contends, and there was no evidence by Respondent to contradict it, that the custom in the industry, where the buyer has the opportunity to inspect and also provides his own transportation, the sale is
