STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES M. O'DELL, JR., & RONALD ) LEWIS, d/b/a O'DELL & LEWIS FARMS, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1874T

)

RONALD JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration in the Sumter County Courthouse, County Commissioner's Meeting Room, Bushnell, Florida at 2:00 p.m., February 16, 1978.

APPEARANCES

For Petitioner: James M. O'Dell, Jr.

and Ronald Lewis Post Office Box 268 Oxford, Florida 32684

For Respondent: Mr. Ronald Justice

500 South Main Street Dermott, Arkansas 71638

ISSUE

Whether the Respondent, Ronald Justice, is indebted to the complainants, James M. O'Dell, Jr., and Ronald Lewis, d/b/a O'Dell & Lewis Farms.

FINDINGS OF FACT

1. This cause is being considered pursuant to Chapter 604, Florida Statutes, which establishes procedure for settlement of controversies between Florida produce farmers and dealers involved with farmers' products.

   
   

2. James M. O'Dell, Jr. and Ronald Lewis filed a complaint against Ronald Justice contending that the Respondent had not paid for two loads of watermelons as follows:

   
   

   May 27, 1977, invoice number 387664, 46,640 lbs Grey Watermelons at 4 cents per lb. totaling

   $1,865.60

   May 29, 1977, invoice number 387670, 43,910 lbs Grey Watermelons at 4 cents per lb. totaling

   $1,756.40

   
   

3. The Petitioners contend, "Mr. Justice placed this order over the telephone, at which time the price had been agreed upon. He sent his own truck and his own driver to pick up these watermelons. The trucks were loaded according to his instructions while his own drivers were present and observed the loading. We had sold watermelons from this same field prior to these and the same day as well as after these dates and there had been no problem with quality. These watermelons were produced here by us at Oxford, Florida. We had expected payment within a few days after arrival, when he was expected to wire money to our bank. Thus far he has not sent this money which is for the above load while previous loads have been paid for." Respondent contends "As the Respondent in this case I wish to state again that I cannot ignore the first load of melons involved, (which I readily paid for sight unseen) as settled even though O'Dell and Lewis wish to ignore it as they had no grievance in the first load transaction. As my own personal affidavit states and as the affidavit of the driver John Braziel, supports; the first load was the greenest of the three loads which it naturally would be as it was clipped from the vine before the next two loads, also it was the inspection of the first load and the second load that made me feel justified that I had paid O'Dell and Lewis an appropriate sum of money until I was more certain how I could come out financially in the freight, sorting and handling of their melons, also please bear in mind that I suffered a business reputation damage that I am now willing to forego in an effort to settle this matter."

   
   

4. The Petitioners sold the Respondent three loads of watermelons. Respondent's drivers loaded the watermelons on or near the farm of Petitioners. The first load was paid for and is not a part of the complaint of the Petitioners. The second and third loads ordered by the Respondent and filled by the Petitioners are the points of controversy.

   
   

5. The watermelons were delivered to the Respondent in Mississippi where he had sold them to various stores. He stated that of the first load which he bought from the Petitioners that he could use but 50 percent inasmuch as the watermelons were unripe. He states that of the second load 30 percent of the watermelons were unripe and could not be used and that of the third load 25 percent of the watermelons were unripe and could not be used. He states that he was compelled to dump the part of the watermelons that could not be used and so dumped them. He contends that his loss on the first load was $1,640.34; that his loss on the second load was $356.80; and that his loss on the third load was

   $298.58 for a total loss on the three loads from the Petitioners of $2,295.72 actual money out of pocket.

   
   

6. Mr. Justice states that he intended to cancel the third load inasmuch as a large percentage of the first two loads were unripe, but that it was his understanding by a telephone call to the Petitioner Ronald Lewis that Lewis had the intention of standing behind his loss and that therefore he did not cancel the order for the third load.

   
   

7. The Petitioners claim that the watermelons were loaded into trucks sent there by the Respondent with his drivers, each of whom inspected the watermelons at the time of loading. They contend that no more than 1 percent of the watermelons loaded were unripe. They also contend that had the Respondent employed a certified inspector to inspect the watermelons at the point of

   delivery and the inspector had stated that the watermelons were unripe that they would have accepted the inspector's report, but that no inspection was made.

   
   

8. Affidavits from the truck drivers who were not growers or inspectors were submitted. Each stated that a large percentage of the watermelons were not ripe.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over this cause.

   
   

10. The burden is on the purchaser under the rules of "caveat emptor":

This maxim summarizes the rule that a purchaser must examine, judge, and test for himself, Miller v. Tiffany, 1 Wall. 309, 17

L.Ed. 540; Hargous v. Stone , 5 N.Y. 82; Humphrey v. Baker, 71 Okl. 272, 176 P.896;. . .

to inspect the article bought and to inspect it if it is not to the standard expected. The Respondent, Justice, completed the purchase of the subject watermelons at the time the produce was loaded on the trucks. If the watermelons had not been saleable, it was the duty of the purchaser through his agents, the drivers, to reject the fruit rather than load it and take it to the market place. Inasmuch as the drivers were not inspectors, evidence as to the quality of the fruit should have been documented by the purchaser before any unripe watermelons were destroyed.

The facts establish that the purchaser and Respondent, Ronald Justice, owes the Petitioners the amount agreed on at the time of the loading of the watermelons.

RECOMMENDATION

It is recommended that the Respondent be required to pay the Petitioners

$3,622.00 for the watermelons purchased from the Petitioners.

DONE AND ENTERED this 8th day of March, 1978, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Mr. Ronald Justice

500 South Main Street Dermott, Arkansas 71638

James A. O'Dell, Jr., and Ronald Lewis

d/b/a O'Dell & Lewis Farms Post Office Box 268 Oxford, Florida

Docket for Case No: 77-001874

Orders for Case No: 77-001874