STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAWRENCE ISOM, NINOUS ISOM, JR., )

and NINOUS ISOM, d/b/a ISOM & SONS ) FARMS, )

)

Petitioners, )

vs. ) CASE NO. 84-0631A

) MAX FROSTEG, d/b/a BULL FROSTEG ) COMPANY, and INSURANCE COMPANY ) OF NORTH AMERICA, )

)

Respondents. )

)

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 March 20, 1984, at Sarasota, Florida.

APPEARANCES

For Petitioner: Lawrence Isom, pro se

1920 Third Avenue West Palmetto, Florida 33561

For Respondent: Max Frosteg, pro se

Post Office Box 109 Pelham, Georgia 31779

By Complaint dated June 20, 1983, Lawrence Isom, Ninous Isom, Jr., and Ninous Isom, d/b/a Isom & Sons Farms, Petitioners, seek to recover $9,529.43 from Max Frosteg, d/b/a Bull Frosteg Company, Respondent, as the difference in price quoted for tomatoes sold and the amounts received by the growers.

At the hearing Max Frosteg testified in his own behalf. Ninous Isom testified on behalf of Petitioners, one witness was called by the Hearing Officer to testify regarding trade practices in farm products brokering, and one exhibit was admitted into evidence. There is no dispute regarding the operative facts in this case.

FINDINGS OF FACT

1. During the tomato growing season involved in this case (November 1982) Max Frosteg, Respondent, was salesman for Isom, Petitioner, under the terms and conditions of the contract admitted into evidence as Exhibit 1.

2. The tomatoes were grown by Isom and sent to the packing house where Frosteg's agent, Boyd, acted as salesman for the grower. Boyd contacted various buyers and obtained prices for tomatoes of specified grade at destination and took orders for these tomatoes. The tomatoes were shipped from the packing house and, upon arrival at destination, the buyer did not always pay the invoice price. It is the difference in invoice price and price paid by the buyer that is here in dispute.

   
   

3. The contract (Exhibit 1) authorized the salesman to make adjustments in the price that may be necessary, to assign the contract, or use price arrivals in selling the product. The duty of the salesman is to get the best price possible for the grower. The contract further provided, and it is customary in the business, that the salesman apprise the grower of all situations where the buyer fails to pay the invoice price because of alleged grade discrepancies in the product or for any other reason. This gives the grower the option of requesting an inspection of the product at destination to determine if the product, in fact, meets or does not meet specifications; and the option of refusing the offering price if the product does not meet specifications.

   
   

4. On the invoices here in question the salesman accepted less than invoice price for the tomatoes but failed to notify the grower and give the grower the option of accepting or refusing the lower price. The money paid for the tomatoes was forwarded to Frosteg, who remitted to Isom his portion of the money received. The amount received by Isom was $9,529.43 less than Isom would have received if the invoice price had been paid for the tomatoes.

   
   

5. By failing to notify the grower that he was accepting a less-than- invoice price, the salesman, Boyd, breached his duty to the grower, Isom. No inspection reports were submitted to show that the tomatoes shipped met specifications for the classification shown on the invoices and no inspection reports were submitted to show that the tomatoes failed to meet said invoice specifications at destination.

   
   

6. Since neither party was represented by an attorney at this hearing, available evidence may not have been submitted.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. Section 604.21, Florida Statutes, provides generally the procedures to follow when a grower complains about the services rendered by a broker, and those procedures were followed in this case. This section makes no reference to any specific provision of contract law that takes precedence over any other provision. Accordingly, this dispute must be resolved solely upon basic contract and agency principles.

   
   

9. Initially, there is a duty owed by an agent to his principal. Without belaboring the issue, it is sufficient to say that by failing to notify the grower of the fact that the buyer was paying less than invoice price for the tomatoes upon their arrival at destination, the salesman breached that duty owed to the grower.

   
   

10. Once a breach of contract is shown, the burden is upon the aggrieved party to show the extent of damages as a result of this breach.

11. The only evidence submitted by the parties was the invoice prices and the prices actually received for the tomatoes. No evidence of bad faith on the part of the salesman was shown nor was evidence presented that the grower received less than his correct portion of the money collected for the tomatoes. The evidence does show that by failing to notify the grower that less-than- invoice prices were being offered, the salesman deprived the grower of an opportunity to prove the tomatoes should have brought a higher price.

    
    

12. By failing to demonstrate specific damages incurred by reason of salesman Boyd's accepting less-than-invoice price for the tomatoes, Petitioners have failed to sustain their burden of proof. Absent any evidence that the tomatoes shipped met the specifications on the invoices, there can be no presumption that the tomatoes met those specifications upon arrival and should have brought invoice prices.

    
    

13. From the foregoing it is concluded that Respondent Frosteg, through his salesman Boyd, breached the duty owed Petitioner Isom to notify Isom immediately and before accepting a buyer-offered price less than invoice prices for the tomatoes; however, Isom has failed to establish the damages incurred by reason of this breach by Boyd. It is therefore

RECOMMENDED that the complaint be dismissed.

ENTERED this 17th day of April, 1984, at Tallahassee, Florida.

K.N. AYERS, Hearing Officer Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 17th day of April, 1984.

COPIES FURNISHED:

Robert A. Chastain, Esquire Department of Agriculture & Consumer Services

Mayo Building

Tallahassee, Florida 32301

Mr. Lawrence Isom Mr. Ninous Isom, Jr. Mr. Ninous Isom

1920 Third Avenue West Palmetto, Florida 33561

Mr. Max Frosteg Post Office Box 109

Pelham, Georgia 31779

Insurance Company of North America 1600 Arch Street

Philadelphia, Pennsylvania 19101

Honorable Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32301

Docket for Case No: 84-000631

Orders for Case No: 84-000631