Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: At all times pertinent to this proceeding, Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1983) . At all times pertinent to this proceeding, Respondent Swaiff was a licensed dealer in agricultural products as defined by Section 604.15(1); Florida Statutes (1983), issued license No. 1630 by the Department, and bonded by Hartford Insurance Company of the Southeast (Hartford) in the sum of $25,000.00 Bond No. RN 4528454. At all times pertinent to this proceeding, Respondent Hartford was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). The record is clear that Respondent Swain agreed to purchase a load of watermelons from Petitioner at an agreed upon price of $0.03 per pound, with payment "due on date of sale", to be loaded on a truck furnished by Respondent Swain through Elton Stone, Inc., a truck broker. Petitioner agreed to harvest and load the truck with a "good quality" or U.S. No. 1 grade watermelons subject to rejection on arrival at their destination if the watermelons were nonconforming for reasons attributable to the Petitioner. No evidence was presented with regard as to what Respondent Swain or Petitioner understood watermelons of "good quality" to mean and, likewise, no evidence was presented to show what standards a load of watermelons had to meet in order to be graded U.S. No. 1. Although Respondent Swain contends that he acted only as a sales agent, that is, he arranged the sale of the watermelons and made arrangements for a truck to deliver the watermelons; the evidence shows that the agreement between Petitioner and Respondent Swain was that title and risk of loss passed to Respondent Swain on shipment, with all remedies and rights for Petitioner's breach reserved to Respondent Swain. Petitioner sold other loads of watermelons to Respondent Swain during the 1985 watermelon season but only one (1) load is in dispute which is a load of watermelons weighing 4,8760 pounds at $0.03 per pound for a total amount of $1;462.80 which Respondent Swain has refused to pay. From June 19, 1985 through June 30, 1985, Petitioner harvested and sold nine t9) other loads of watermelons from the same field as the watermelons in dispute were harvested without any loss due to anthractnose rot or otherwise on arrival at their destination. The watermelons in dispute were loaded June 26, 1985 on a trailer with license number KY-T37-131 and billed to Charley Brothers Company; New Stanton; Pennsylvania by Respondent Swain's on his Invoice Number 061843 and delivered on June 28, 1985. Charley Brothers Company rejected the load and Respondent Swain called for an inspection which showed some anthractnose rot in the early stages in the front ten (10) feet of trailer with the remaining load showing no decay. The percentage of rot or decay is not-evident from the report since it is somewhat illegible and the inspector who prepared the report did not testify. 10 The evidence was insufficient to prove whether the trailer was vented or not vented. The testimony of those persons present during the loading of the watermelons in dispute was credible and shows that the watermelons were in good condition on June 26; 1985 when they were loaded and that if anthractnose rot was present on the watermelons it was not visible at the time of loading. Neither Respondent Swain nor his representative were present during the harvesting and loading of the watermelons. The evidence shows that Respondent Swain made numerous telephone calls in regard to this load of watermelons, some of those calls to Petitioner, but the evidence is insufficient to prove the content of those telephone conversations with Petitioner. The load was put on consignment to Felix and Sons Wholesale by Respondent Swain and he received a check in the sum of $500.00 as payment for the load of watermelons. Respondent Swain paid Elton Stone, Inc. $1,820.94 for freight resulting in a loss of $1,320.94 on the load of watermelons.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein; it is RECOMMENDED that Respondent Swain be ordered to pay to the Petitioner the sum of $t,494.30. It is further RECOMMENDED that if Respondent Swain fails to timely pay the Petitioner as ordered, then Respondent Hartford be ordered to pay the Department as required by Section 604.21; Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983). Respectfully submitted and entered this 28th day of February, 1986, in Tallahassee; Leon County; Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1986. COPIES FURNISHED: Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Robert Chastain, General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, F1orida 32301 L. J. Crawford Route 3, Box 269 Lake Butler, Florida 32059 Ron Weaver, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Joe W. Kight; Chief License and Bond Room 418, Mayo Building Tallahassee, Florida 32301 Hartford Insurance Company of the Southeast 200 East Robinson Street Orlando, Florida 32801 Dale M. Swain d/b/a Palm Fruit Shop 313 West Seminole Avenue Bushnell, Florida 33513
The Issue Whether Respondent owes Petitioner $2,377.20 as alleged in the complaint filed by Petitioner in July 1997.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Bigham Hide Company, Inc. (Petitioner), is a watermelon grower in Coleman and Lake Panasoffkee, Florida. Respondent, Florida-Georgia Produce, Inc. (Respondent), is a licensed dealer in agricultural products having been issued License Number 7666 by the Department of Agriculture and Consumer Services (Department). Respondent has posted a bond in the amount of $30,000.00 written by Cumberland Casualty & Surety Company, as surety, to assure proper accounting and payment to producers such as Petitioner. In a complaint filed with the Department in July 1997, Petitioner alleged that he entered into an agreement with Bobby Patton (Patton) on behalf of Respondent to sell one truckload of "pee wee" watermelons. Under that agreement, Respondent agreed to pay seven cents per pound for the watermelons, and it would advance Petitioner $700.00 to cover the labor costs associated with loading the truck. The remainder would be paid upon final delivery. The complaint goes on to allege that Petitioner subsequently learned that there was "some problem" with the delivered produce. After Respondent inspected Petitioner's field to verify the quality of the crop, Petitioner was told that Respondent would "fight the fight" to get the shipment accepted. Since that time, however, the complaint alleges that Petitioner did not receive payment, an accounting of the transaction, an inspection report, or any further explanation. Accordingly, Petitioner filed this complaint seeking $3,077.20, less the $700.00 advance, or a total of $2,377.20. In its answer, Respondent has alleged that it actually received a truckload of "old diseased watermelons that had been lying in the field or on [the] field truck for a week," and the receiver refused to accept the load. Since it received nothing for the shipment, Respondent contends it is owed $700.00 for the money advanced to Petitioner. The parties agree that in late May 1997, Petitioner was contacted by Bobby Patton, who was representing Respondent, regarding the sale of small size watermelons. Patton offered to buy one truckload of "pee wee" watermelons at a price of seven cents per pound, to be paid after delivery to the receiver. Patton also agreed to advance Petitioner $700.00 to cover his loading costs. Petitioner agreed to these terms, and the truck was loaded from his field on June 3, 1997. The net weight of the loaded produce was 43,960 pounds. The vehicle's tag number was recorded on the loading slip as "AH 39099" from the province of Quebec, Canada. There is no evidence that the crop was diseased when it was loaded, or that it had been picked and lying in the field for several days before being loaded, as suggested in Respondent's answer to the complaint. The shipment was destined for Ontario, Canada. On or about June 5, 1997, the product was delivered to the customer, Direct Produce, Inc., in Etobicoke, Ontario. Because of a perceived lack of quality, the buyer refused to accept the load. Respondent immediately requested a government inspection which was performed on June 6, 1997. The results of that inspection are found in Respondent's Exhibit 3. It reveals that 1 percent of the load was decayed, 3 percent were bruised, 6 percent had Anthrocnose (belly rot), and 75 percent had "yellow internal discolouration." In addition, a composite sample reflected that 20 percent had "Whitish Stracked Flesh" while 5 percent had "Hollow Heart." In other words, virtually the entire shipment was tainted with defects or disease. The report also reflected that the net weight of the shipment was 44,500 pounds, and the tag number of the vehicle was "ALP 390999." The weight and tag number were slightly different from those recorded on the loading slip at Petitioner's field. After learning of the results of the inspection, Respondent's president, James B. Oglesby, immediately contacted Petitioner's president, Greg Bigham, and requested an inspection of Bigham's field to verify the quality of watermelons. During the inspection, Oglesby did not find any signs of belly rot or other problems similar to those noted in the government inspection. If there had been any incidence of belly rot in Petitioner's field, it would have been present in other unpicked watermelons. At the end of his inspection, Oglesby told Petitioner that he would "fight the fight" to get the shipment delivered and sold. Oglesby eventually found a buyer who would accept the shipment as feed for cattle. The buyer agreed to pay the freight charges for hauling the watermelons to Canada but nothing more. Therefore, Respondent was not paid for the load. Petitioner was led to believe that he would receive payment and paperwork, including the inspection report, within a few days. When he did not receive any documentation, payment, or further explanation within a reasonable period of time, he filed this complaint. It would be highly unlikely that a farmer would have one completely bad load from a field without the same problems being present in other loads shipped from the field at the same time. Petitioner presented uncontroverted testimony that no other shipments from that field during the same time period were rejected or had similar problems. In addition, it was established that poor ventilation on the truck, or leaving the loaded truck unprotected in the sun, could be causes of the crop being spoiled or damaged before it was delivered to Canada. Finally, at hearing, Respondent suggested that Bigham may have shown him a different field than the one from which his load was picked. However, this assertion has been rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture and Consumer Affairs enter a final order determining that Respondent owes Petitioner $2,377.20. In the event payment is not timely made, the surety should be responsible for the indebtedness. DONE AND ENTERED this 6th day of February, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day 6th of February, 1998. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond 508 Mayo Building Tallahassee, Florida 32399-0800 Terry T. Neal, Esquire Post Office Box 490327 Leesburge, Florida 34749-0327 James B. Oglesby Post Office Box 6214 Lakeland, Florida 33807 Cumberland Casualty & Surety Company 4311 West Waters Avenue Tampa, Florida 33614 Richard D. Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact The Petitioners in this matter are agricultural producers. Respondent GMS is an agricultural dealer. Petitioners, through their agent, Odis Phillips, contracted to sell a portion of their watermelons to GMS through its agent, J. W. Starling. Neither side controverts that prior to June 25, 1983, the terms of their verbal contract were as follows: The watermelons were to be loaded on the shipper's truck at the field by the grower at the grower's expense; GMS would confirm a firm sale price at the time of delivery; and Settlement would be on the day following the delivery of the melons to the shipper. The price was the local market price paid producers of watermelons by the shippers, which price was generally acknowledged to be one cent per pound less than the price for which the shipper could sell the melons. The above terms were not renegotiated between Phillips and Starling. Immediately prior to June 25, 1983, the market price paid to GMS by shippers had been falling at approximately one cent per pound per day. On or about June 25, 1983, William Ward, Jr., manager of GAS, called Starling and advised him that the watermelon market was falling and they no longer had any confirmed sales. Ward advised Starling that Starling could no longer quote fixed prices to the growers from whom GMS had been purchasing watermelons. This constituted a change from the way these transactions had been handled prior to that date, when the price of the melons was fixed and GMS had a confirmed sale for the melons. After that date, GMS sought to obtain the melons for sale as `rollers." A "roller" is a load of melons shipped without a confirmed purchaser, for which a sale is attempted to be negotiated while the melons are in transit. The loads of melons in question were shipped by GMS as "rollers." Testimony regarding whether the Petitioners agreed to the sale of the watermelons in question as "rollers" or continued to demand a fixed price for their melons is conflicting. After June 25, 1983, Starling was in contact with Phillips and advised him that the market was off and the price was dropping. Starling felt he had advised Phillips that the melons would henceforth be "rollers" and the price contingent upon the sale price. Phillips did not feel that there had been any change, but felt that the price would continue to be based upon local market conditions. It is specifically found that the terms in Case Nos. 83-3013A and 83-3014A remained unchanged. The local market price on June 27, 1983, was six cents per pound. Starling was in contact with Petitioner James E. Hiers at Starling's office on the morning of June 29, 1983. Hiers was functioning as a field supervisor, keeping a record of the number of loads, their weight, the buyer, the price, and what was paid for all loads sold involved in Case No. 83-3015A. Starling testified that he advised Hiers that the price of the watermelons shipped on June 28 and 29, 1983, was not firm but would be based upon the price for which GMS could sell them. Starling testified that he told Hiers the price was contingent upon price when the melons sold. Hiers responded to Starling on June 29, 1983, that he was not selling based upon the sales price for the melons received by GMS but would sell only for a firm price at the rate other brokers were paying producers for melons in the local area. Starling did not clearly state that the melons were "rollers;" however, there was definitely no assent on the part of Hiers to ship the Petitioners' melons as "rollers." Starling testified that he did not quote Hiers a price for the watermelons. Hiers testified that it was his practice not to load melons for shipment until a firm, fixed price for them was quoted by the purchaser. Heirs' testimony was the more credible and supported by others who had purchased melons from him. Each morning during the season, Heirs ascertained the market price for watermelons. His records reflect a price of four to five cents per pound for June 29, 1983, which Hiers took to be an effective price of four cents per pound. This price of four cents per pound was consistent with the local market price for watermelons on June 28 and 29, 1983. After Hiers rejected the new terms tendered by Starling and restated that the terms of sale were firm price based upon local market price, GMS trucks were sent with Hiers to the field for loading. It costs a farmer between two and a quarter and two and a half cents per pound to load and ship watermelons. The price eventually tendered by GMS for the melons in question was three cents per pound, or one cent less than the price quoted by Starling. The following reflects by the case number, the date, weight, and tendered settlement price for each load of watermelons purchased by GMS based upon track reports; Petitioners Exhibits 1, 2 and 3; and evidence of price based upon the testimony and records of the Petitioners: Case No. 83-3013A Date Wght. Local Amount Pound Market Tendered Difference Price by GMS Claimed Total Difference Claimed 06/27/83 40,610 $.06 $.05 $.01 $406.10 06/27/83 43,540 .06 .05 .01 435.40 06/27/83 47,900 .06 .04 .02 958.00 06/27/83 41,410 .06 .05 .01 414.10 06/27/83 40,000 .06 .05 .01 400.00 06/28/83 41,130 .05 .04 .01 411.30 06/28/83 42,610 .05 .03 .02 852.20 06/28/83 40,250 .05 .03 .02 805.00 06/28/83 42,520 .04 .03 .01 425.20 $ 5,107.30 Case No. 83-3014A Date Wght. Local Amount Pound Market Tendered Difference Price by GMS Claimed Total Difference Claimed 06/27/83 47,950 $.06 $.05 $.01 $479.50 06/28/83 42,770 .05 .04 .01 427.70 $ 907.20 Case No. 83-3015A Wght. Price Local Amount Pound Market Tendered Difference by GMS Claimed Claimed Total Difference Date 06/28/83 44,220 $.05 $.03 $.02 $884.40 06/28/83 44,070 .05 .03 .02 881.40 06/29/83 46,450 .04 .03 .01 464.50 06/29/83 41,350 .04 .03 .01 413.50 06/29/83 39,880 .04 .03 .01 398.80 06/29/83 42,100 .04 .035 .005 210.50 06/29/83 40,260 .04 .04 .00 - 0 - 06/29/83 42,420 .04 .03 .01 424.20 $ 3,676.30 In addition to the money already tendered, the Respondents owe the Petitioners the following amounts: in Case No. 83-3013A, $5,107.30; in Case No. 83-3014A, $907.20; and in -Case No. 83-3015A, $3,676.30; or a total of $9,690.80.
Recommendation Having determined that the allegations of the complaint have been established, and having determined that Respondent GMS owes the Petitioners respectively the following sums, it is recommended that the Department of Agriculture and Consumer Services order Respondent GMS to pay the Petitioners the following amounts in these cases in addition to the amounts tendered: (a) in Case No. 83-3013A, $5,107.30; (b) in Case No. 83-3014A, $907.20; and (c) in Case No. 83-3015A, $3,676.30. DONE and RECOMMENDED this 17th day of April, 1984, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The 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: Frederick E. Landt, III, Esquire Post Office Box 2045 Ocala, Florida 32678 M. Craig Massey, Esquire 1701 South Florida Avenue Post Office Box 2787 Lakeland, Florida 33806-2787 Glenn Bissett, Chief Bureau of Licensing and Bond Department of Agriculture & Consumer Services Mayo Building, Room 418 Tallahassee, Florida 32301 Robert A. Chastain, Esquire Department of Agriculture & Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 The Honorable Doyle Conner Commissioner of Agriculture & Consumer Services The Capitol Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing and at the subsequent deposition, the following facts are found: At all times pertinent to this proceeding, Petitioners were producers of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1983). At all times pertinent to this proceeding, Respondent Sales was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 207 by the Department and bonded by Hartford Insurance Company of the Southeast (Hartford) in the sum of $20,000 - Bond No. RN 4429948. At all times pertinent to this proceeding, Respondent Hartford was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). On June 11, 1985 Respondent Sales, through its agent William C. Summers (Summers), contracted with Petitioners to load several loads of watermelons on trucks furnished by Respondent Sales at Petitioners' watermelon field. Petitioner agreed with Summers to load a good quality watermelon ranging in weight from seventeen (17) pounds and up, with an occasional watermelon weighing less than seventeen (17) pounds. The price agreed upon was $0.03 per pound with the sale being final upon loading, weighing and acceptance by Summers. Before loading any watermelons, Summers along with Petitioners Shivers inspected the field of watermelons for size and quality and to estimate how many watermelons were available for shipment. On June 11, 1985 Petitioners began loading the first load of watermelons the only load in dispute, in accordance with the agreement. Summers was present on several occasions, for periods of approximately thirty (30) minutes each time, during the time of loading and on occasions would instruct Petitioner Sullivan who was packing, to put watermelons, both large and small which Sullivan had rejected, back on the truck for shipment. Petitioner finished loading the first load of watermelons on June 11, 1985 which was weighed and accepted and paid for by Summers on June 12, 1985. The net weight was 43,260 pounds for a total amount of $1,297.80. On June 12, 1985, Summers issued a check jointly to Petitioners on Respondent Sales' checking account which Summers signed for the sum of $1,297.80 but later "stopped for payment" on this check and Respondent Sales has since refused to pay Petitioners this amount. Although Sullivan advised Summers that a range in weight of 17 pounds and up was too wide for a load of watermelons to be classified as medium, Summers advised Sullivan to load watermelons weighing 17 pounds and up. After Petitioners started loading the second load, Summers instructed Sullivan to only pack watermelons ranging in weight from 17 to 24 pounds which Sullivan did and Petitioners were paid for this second load without incident. The evidence was insufficient to prove that the watermelons in question had been rejected at destination due to the wide range of weights or for any other reason. 13, The evidence is clear that Summers was acting for Respondent Sales and had authority to purchase and accept the watermelons in dispute. The only reason Respondent Sales' refused to pay was the alleged nonconformance as to size.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent Sales be ordered to pay to the Petitioners the sum of $1,297.80. It is further RECOMMENDED that if Respondent Sales fails to timely pay the Petitioner as ordered, then Respondent Hartford be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983). Respectfully submitted and entered this 13th day of March, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 13th day of March 1986. COPIES FURNISHED: Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Robert Chastain, General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Ron Weaver, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Joe W. Kight, Chief License and Bond Mayo Building Tallahassee, Florida 32301 Terry McDavid, Esquire 200 North Marion Street Lake City, Florida 32055 Steve Shiver and Jody Sullivan Route 1, 8ox 474 Mayo, Florida 32066 A. J. Sales Company Post Office Box 7798 Orlando, Florida 32854 Hartford Insurance Company of the Southeast 200 East Robinson Street Orlando, Florida 32801
The 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 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. 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 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." 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. 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. 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. 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. 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.
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
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, and at the subsequent deposition, the following facts are found: At all times pertinent to this proceeding, Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1983). At all times pertinent to this proceeding, Respondent Sales was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 4103 by the Department, and bonded by Hartford Insurance Company of the Southeast (Hartford) in the sum of $20,000 Bond No. RN 4429948. At all times pertinent to this proceeding, Respondent Hartford was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). On June 12, 1985, Respondent Sales, acting through its agent William C. Summers (Summers), contracted with Petitioner to purchase several loads of watermelons which were to be loaded by Petitioner on trucks furnished by Respondent Sales at Petitioner's watermelon field. Summers acting as Respondent Sales' agent had the authority to purchase, inspect, accept and pay for the watermelons. Petitioner agreed with Summers to load "field run" watermelons that were not "too big" or not "too small". Respondent did not request that the load be small, medium or large. Small being watermelons ranging in size from 11 to 17 pounds medium being watermelons ranging in size from 17 to 24 pounds and large being watermelons ranging in size from 24 to 40 pounds. Although Petitioner did not agree to furnish any specific grade of watermelon, the evidence shows that it was understood by Petitioner that Summers was contracting for "good quality" watermelons. On the second load Summers instructed the Petitioner to eliminate the large watermelons and this was done while harvesting and packing. The agreed upon price per pound of watermelons was $0.03 and the total price of each load of watermelons was to be determined by multiplying the price per pound by the net weight of each load of watermelons. The net weight of the load of watermelons in dispute was 46,260 pounds which when multiplied by $0.03 per pound equals a total price of $1,386.90 which Respondent Sales has refused to pay. Under the agreement it was Petitioner's responsibility to harvest and pack the watermelons on the trailer in accordance with Summers instructions but at Petitioner's expense, and it was Summers' responsibility to inspect the watermelons as to size and quality during the harvesting and packing and to reject any watermelons not conforming as to size and quality under the agreement. Upon the watermelons being loaded, inspected, accepted and weighed, the sale was to be final and Petitioner was to receive payment with title and risk of loss passing to Respondent Sales at point of shipment. Although Petitioner loaded approximately 2 1/2 loads of watermelons for Respondent Sales, only the last load or the second full load, which Petitioner started loading on June 12, 1985 and finished loading on June 13, 1985, is in dispute. On June 13, 1985, Summers issued a check on the account of Respondent Sales for payment of the 2 full loads of watermelons, which included payment for the load in dispute, but later that same day demanded that Petitioner return the check or Summers would stop payment on the check. Petitioner returned the check and was later paid for the first load but Respondent Sales has refused to pay for second load alleging that the quality of the watermelons did not conform to the agreement. There was no problem as to the size of the watermelons. Respondent Sales, after Summers accepted and issued the check for the watermelons in dispute, decided to make payment of the watermelons contingent on acceptance at destination rather than acceptance by Summers at the point of shipment as agreed earlier and refused to pay Petitioner for the watermelons in dispute because allegedly they had not been accepted at their destination. When advised of this change, Petitioner refused to sell any more watermelons to Respondent Sales. Although Respondent's exhibit 1 and 2 show that a load of watermelons loaded by Petitioner was federally inspected on June 17, 1985 at its destination, the evidence is insufficient to prove that the load of watermelons in dispute was inspected on June 17, 1985. In any event, only the condition of the watermelons was reported on the inspection report and no determination made by the inspector as to size, quality or grade, and there was no evidence to show that the condition of the watermelons at their destination would result in the watermelons failing to conform to the agreement; i.e., good quality. The watermelons were culled in the field during harvesting, at the trailer during packing and were additionally culled by Summers during the packing while he was present. Summers was not present full time while the watermelons were being harvested and loaded but was present on several occasions for periods up to 20 or 30 minutes for a total time of approximately 1 1/2 hours. Summers was allowed to inspect the watermelons in the field before harvesting and during harvesting and, in addition to the culling of the watermelon during harvesting and loading by Petitioner, Summers was allowed to cull, while he was present during loading. The evidence is sufficient to show that Summers had ample opportunity to inspect the watermelons and that he did inspect and accept the load of watermelons in dispute at point of shipment. The testimony of Petitioner and Bill Lamb that the watermelons in dispute were of the size and quality to conform to the agreement when loaded on the trailer on June 12 and 13, 1985 was credible.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent Sales be ordered to pay to the Petitioners the sum of $1,386.90. It is further RECOMMENDED that if Respondent Sales fails to timely pay the Petitioner as ordered, then Respondent Hartford be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983). Respectfully submitted and entered this 14th day of March, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1986. COPIES FURNISHED: Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Robert Chastain, General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Ron Weaver, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Joe W. Kight, Chief License and Bond Mayo Building Tallahassee, Florida 32301 Terry McDavid, Esquire 200 North Marion Street. Lake City, Florida 32055 Robin C. Shiver Route 3, Box 248 Mayo, Florida 32066 Carl Boyles A. J. Sales Company P. O. Box 7798 Orlando, Florida 32854 Hartford Insurance Company of the Southeast 200 East Robinson Street Orlando, Florida 32801
The Issue The issue for determination is whether Respondents owe Petitioner approximately $3,807.00 for a quantity of watermelons provided to Respondents by Petitioner; secondarily, resolution of this issue requires a determination of whether Respondents acted as an agent for Petitioner as opposed to a direct purchase of Petitioner's melons by Respondents.
Findings Of Fact Petitioner is a resident of Suwannee County, Florida and a farmer who produces agricultural products, including watermelons. Respondent John W. Hill, is a dealer of such products in the course of normal business activity. Respondent Hill's services include arranging for the harvesting and loading of melons for shipment to northern markets, as well as the location of buyers for the melons. Respondent Hill acts as a broker in these arrangements, receives the gross sales receipts from buyers and from that sum deducts costs of labor, freight, inspections, any other associated costs and his commission. The net balance of the gross sales receipts are paid to the melon producers. Respondent Florida Farm Bureau Mutual Insurance Company is the bonding agent for Respondent pursuant to Section 604.20, Florida Statutes. Petitioner knew Respondent Hill and had discussed brokerage or trading of watermelons with him on occasion. Shortly before or on July 2, 1992, Petitioner's watermelon crew left him and he telephoned Respondent Hill. Unable to speak with Hill, Petitioner spoke with Hill's wife. She and Petitioner discussed a possible price for Petitioner's melons of five cents a pound. Shortly thereafter, Respondent Hill later contacted Petitioner by telephone and confirmed the five cents per pound price, provided the melons met requirements. Respondent was using a cellular telephone in his truck and when Petitioner hung up his telephone and walked out of his barn, he observed Respondent's employees in the field starting to cut the vines connected to the melons. Respondent Hill was nearby in his truck. Petitioner and Respondent Hill drove around the farm and looked at Petitioner's various melon plots. Respondent Hill agreed to attempt to market a variety of the melons known as sangaria at the five cents per pound price. The parties did not reduce their agreement to writing. Respondent Hill felt that Petitioner understood that they were partners, that he was acting as Petitioner's broker for the eventual sale of the melons to a specified buyer, FRESH PLUS, a buyer in Philadelphia, Pennsylvania. At one point during the process of driving around the watermelon field, Hill and Petitioner discussed the condition of the melons and that they would run the melons in and see if they could get five cents per pound for them. Hill also was convinced that Petitioner understood that the melons must be accepted by the receiver or meet certain conditions in order to get that price for the melons. It is customary within the industry that, unless stated otherwise, all melons must grade US #1 at the time of delivery to a buyer. Petitioner did not accompany the loads of watermelons to the shipping facility where the sangaria melons were weighed and loaded for shipment. As a result, he did not receive a copy of Respondent Hill's July 2, 1992, track report documenting a 48,320 pound load of sangaria watermelons bearing the written statement "must be accepted by receiving or grade U.S. #1." The melons were rejected by the buyer upon arrival in Philadelphia as not meeting requirements and Respondent Hill, when learning of the rejection, called for and received an official USDA inspection of the melons. The July 6, 1992 inspection revealed that the melons were not US #1. Respondent Hill then shipped the melons to an alternate perspective buyer, T & K Binning in Jessup, Maryland. Upon arrival, T & K rejected 375 of the melons and accepted 2,127 melons at $1.25 per melon for a total purchase price of $2,685.75 which was received by Respondent Hill. After subtraction of labor costs of $733.12, freight costs of $1,965.00, and inspection costs of $133.50, Respondent Hill absorbed a net loss of $212.93. Another 27,280 pounds of melons that were not of the sangaria variety were loaded from Petitioner's farm and shipped to a seller, Park-N-Shop, in Charlotte, North Carolina, along with melons grown by several other producers. These commingled melons were sold for a gross sales price of $1,344.00. After substraction of labor costs of $792.83 and freight costs of $714.20, Hill absorbed a net loss of $163.03 for the melons. Testimony of Respondent Hill at the final hearing was corroborated by documentation of Respondent Hill's absorption of all costs connected with the sale of the melons, including initial loading costs. Hill's testimony establishes that the arrangement between the parties was a brokerage arrangement and that the sale of the melons was subject to conditions common to the industry, i.e., that the melons grade #1 upon receipt by buyer. Testimony of Petitioner is uncorroborated and fails to establish that the agreement between the parties contemplated a direct sale of the melons to Respondent Hill.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing Petitioner's complaint. DONE AND ENTERED this 15th day of July, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1993. APPENDIX The following constitutes my rulings, pursuant to requirements of Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings 1. Accepted in substance. 2.-3. Rejected, subordinate to HO findings on this point. 4. Rejected, argument. Respondent's Proposed Findings 1.-9. Accepted in substance. 10. Rejected, cumulative. COPIES FURNISHED: David Hingson Route 4, Box 330 Live Oak, Florida 32060 William A. Slaughter, II, Esquire P.O. Box 906 Live Oak, Florida 32060 Florida Farm Bureau Mutual Insurance Company Legal Department 5700 SW 34th Street Gainesville, Florida 32608 Hon. Bob Crawford Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-1550 Richard Tritschler General Counsel 513 Mayo Building Tallahassee, Florida 32399-0800 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture Mayo Building, Rm 508 Tallahassee, Florida 32399-0800
Findings Of Fact Petitioners are growers of watermelons and qualify as "producers" under Section 604.15(5) F.S. Respondents Smith are broker-shippers of watermelons and qualify as "dealers" under Section 604.15(1) F.S. Respondent South Carolina Insurance Company is surety for Respondents Smith. Petitioners Brewton and Respondents Smith have had a good business relationship overall, including the 1992 growing season during which several loads of high quality watermelons were sold by the Brewtons through the Smiths. Of the several loads of melons sold, only one load, the one invoiced on June 18, 1992, is at issue. Regardless of oral agreements with varying conditions for other loads, the parties agreed as of June 18, 1992 that the load of June 18, 1992, invoice 2088, (R-5), would be paid for by Respondents Smith advancing harvest costs and agreeing to pay Petitioners for the load, minus the costs of harvesting, after Respondents had received payment from the recipient. At the time of loading, everyone concerned felt the June 18, 1992 load might have some problems with it, but every attempt was made to load only quality product. Petitioners and Respondents each had input on which specific melons were loaded. At that time, Mr. Rick Smith o/b/o Respondents Smith advised Mr. Dewey Brewton, III that because the quality of the load was borderline and as a result of its borderline condition the whole load could be rejected at its ultimate destination, Respondents Smith wanted Petitioners Brewton to protect the Respondents Smith on the quality of the melons. He also specifically advised Dewey Brewton, III that the whole load could be rejected. The parties then entered into an agreement, partly oral and partly written. Rick Smith and Dewey Brewton, III understood their agreement to mean that Petitioners would absorb any loss as a result of the quality of the watermelons from that point forward, but that Respondents would not come back against Petitioners for the costs Respondents had advanced on Petitioners' behalf or for the cost of the freight. To signify this, the words "grower protects shipper on quality" was written on the invoice. On or about June 22, 1992, Rick Smith informed Dewey Brewton, III that the entire June 18, 1992 load had been rejected by the first receiver. At that time, Dewey Brewton, III accepted Rick Smith's representation and did not require further proof of rejection at the first point of delivery or request an independent inspection at the first point of delivery. He also acquiesced in Respondents shopping around for a second buyer who might take all or some of the load originally sent out on June 18, 1992, and did not request the return of Petitioners' watermelons. At that time, Rick Smith also told Dewey Brewton, III that the load might have to be held on the truck a day or two to ripen some of the watermelons for a second point of delivery. He again indicated that the whole load could be rejected again when the load was sent on to a second receiver. Dewey Brewton, III specifically agreed to let the melons ripen "a day or so," and did not request any change in the grower protection plan initially agreed to between the parties. Respondents Smith were eventually able to market the melons to a second delivery point (consignee) in Michigan. That receiver complained that the melons started breaking down and he had to dump 735 melons. Pursuant to standard custom of the trade, Respondents accepted payment of $1,944.00 for the melons, subtracted $1,831.98 they had laid out in freight costs and also subtracted the $675.18 they had advanced on behalf of Petitioners to the harvester. Thus, Respondents sustained a net loss of $563.16. Respondents absorbed the $563.16 loss and did not require any repayment of harvesting costs advanced or any freight charges from Petitioners. Dewey Brewton, III testified that he originally understood that "grower protection" meant that Petitioners "would stand behind their quality product until the ultimate point," but that he had interpreted a comment by Mr. Rick Smith on June 22, 1992 to the effect that "the grower (Petitioners) agreed to 'ride' the watermelons and the shipper (Respondent) agreed to 'ride' the freight" to mean that the growers (Petitioners) no longer had any duty to cover their own losses on the June 18, 1992 load of watermelons after the first rejection and up to final sale to the second buyer. In light of Mr. Brewton's failure to change the written language concerning protection on the invoice, his knowledge from the day of initial shipment that the June 18, 1992 load was of dubious quality, his acceptance that the first recipient had rejected the load, and his agreement that Respondents could have a further waiting/ripening/shopping around period before ultimate sale, coupled with his knowledge from the very beginning that the June 18, 1992 load could be utterly rejected at any point so as to render the endeavor a complete loss to the Petitioners, Mr. Brewton's assumption that on June 22, 1992, Respondents Smith were voluntarily waiving their written agreement that "grower protects shipper on quality" was not reasonable. On June 22, 1992, the load had already been rejected once. At that stage, the outcome of the proposed sale was considerably more precarious than when the crop was loaded on June 18, 1992. It is also found Mr. Brewton's assumption that the agreement had been modified was not knowingly or intentionally induced by the Respondents and that the assumption was not contemporaneously conveyed to Respondents Smith so that they could disabuse Mr. Brewton of his error. Upon the foregoing, it is further found that the written initial agreement that "grower protects shipper on quality" was not altered on June 22, 1992 but continued in force.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the Department of Agriculture and Consumer Services enter a Final Order dismissing Petitioner's complaint. RECOMMENDED this 26th day of March, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1993. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda D. Hyatt, Chief Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Jacquelyn J. Brewton 8876 NW 115th Avenue Ocala, FL 34482 Dewey Brewton III 8876 NW 115th Avenue Ocala, FL 34482 Richard L. Smith Midwest Marketing Company P. O. Box 193 Vincennes, IN 47591 South Carolina Insurance Company Legal Department 1501 Lade Street Columbia, SC 29201-0000
The Issue Whether the Respondent owes the Petitioner money for watermelons allegedly purchased from Petitioner. The factual and legal issue is whether Respondent purchased the melons or acted as a broker/agent for Petitioner and attempted to sell the melons for Petitioner.
Findings Of Fact During the 1996 season, the Petitioner, who is a labor contractor and farmer, grew watermelons. The Respondent, who is a building contractor and watermelon broker, was “handling” watermelons in the area around Archer, Florida. The Respondent was represented by Tony Tharp, brother of the Respondent, who spoke with the Petitioner. As a result of an oral agreement reached between Tony Tharp and Petitioner, the watermelons which Petitioner had grown were picked by persons working for Tharp on June 20, 21, and 23, 1996. There was no written contract or memorandum regarding the agreement of the parties. Petitioner stated that he wanted to get his melons picked, but that he was busy with his crew and could not pick them, and the melons needed to be picked because they were past their prime. Tony Tharp agreed to “move them” for Petitioner. One truck load was picked and loaded on June 20; three truck loads were picked and loaded on June 21, and two truck loads were picked and loaded on June 23. Tharp paid Petitioner $700 which was termed an “advance” by Respondent, and considered a “down payment” by Petitioner, who understood he would receive the remainder of the money due him in approximately seven days. The trucking was arranged for by Tharp, and the Respondent bore the cost of picking and freight initially, and the merchants who received the melons paid the shipping for the melons they accepted. The melons were shipped to markets in several states. The first load was refused by the intended recipient, and after several attempts to dispose of the melons, they were sold at salvage for $180. The second load was also refused, and could not be salvaged. Pictures of this load were introduced where it was unloaded in Marianna, Florida. The remaining loads of watermelons were accepted, and $4,876.43 received for them. The costs of loading the two loads which were refused was $1,149.75. The freight costs on these two loads was $3,901.83. The Petitioner testified that the Tharp agreed to purchase the melons in the field, and, therefore, he is entitled to the purchase price for the melons. Dennis Tharp stated he was a broker, and that the Petitioner assumed the risk if the melons could not be sold. Dennis Tharp stated that he had lost the costs of picking, $1,149.75, and transporting, $3,901.83, the two loads of melons offset by the salvage value of $180.00, resulted in a total loss of $4,871.58. When the costs of picking the last four loads, $1,591.20, and the $700.00 advance on the sale is deducted from the proceeds of the sale of the last four loads, $4,876.43, the net profit on the last four loads is $2,585.23. When the profits from the sale of the last four loads is deducted from the loses on the first two loads, there is a net loss of $2,286.35. This net loss was absorbed by the Respondent. Several of the people who were in the field testified regarding the state of the melons being picked. The melons were past their prime for picking. On the last load, the pickers refused to pick any more melons without additional compensation because so many melons were being rejected at the truck. Petitioner, who was present, concurred in this extraordinary expense. Generally, melons are not sold because the market drops and the merchants refuse melons being shipped to them. In this case, the first melons were rejected, and the last loads were accepted. The quality of a watermelon cannot be determined without cutting it open which destroys its merchantability. Watermelon graders attempt to judge the quality of melons from the external characteristics; however, purchasers cut open samples upon receipt to judge their quality. The Respondent notified the Petitioner by letter dated July 11, 1996 that the first two loads had been rejected; that he had salvaged those he could; and that the costs related to these two loads exceeded the profits due Petitioner on the last four loads.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department enter a Final Order finding that the Respondent owes no further money to the Petitioner. DONE and ENTERED this 12th day of March, 1997, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1997. COPIES FURNISHED: Alphonso Hunt 226 Fawn Drive Archer, Florida 32618 Dennis Tharp 4516 Decatur Street Marianna, Florida 32446 Auto Owners Insurance Company Legal Department Post Office Box 30660 Lansing, MI 48909-8160 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-01 Tallahassee, Florida 32399-0810
The Issue The issues that were considered in the course of the hearing were those related to a claim by the Petitioner of entitlement to receive an additional $5,581.00 in proceeds related to the sale of watermelons to J. R. Sales, Inc. In this case Petitioner has alleged that the Respondent J. R. Sales, Inc. in the person of its representative, one Carr Hussey, had agreed to pay a fixed price of four cents per pound for large grey watermelons and 3.5 cents per pound for medium grey watermelons and that four cents per pound was due the Petitioner for the delivery of large jubilee watermelons. It is further alleged that those prices were not paid. If the Petitioner's assertions are correct, the additional amount owed would be $5,581.00. In reply Respondent J. R. Sales, Inc. denies the claim of $5,581.00 and in its defense states that all money due and owning to the Petitioner has been paid.
Findings Of Fact Petitioner, Earl Dicks, is a farmer in Columbia County, Florida. In 1984 Petitioner grew two varieties of watermelons in Columbia County for the purpose of selling those crops commercially. Those watermelon varieties were greys and jubilees. As of June 21, 1984, Petitioner had not sold his crop of watermelons. On that date Petitioner was introduced to Carr Hussey, President of J. R. Sales, Inc. This introduction was made by another farmer, one Doyle Ottinger. The purpose of this introduction was to ascertain whether Hussey would be interested in purchasing the watermelons which Petitioner had available for sale. J. R. Sales, Inc. is a company which purchases watermelons in Florida for delivery and further sale in markets outside of Florida. Following the introduction of the Petitioner and Hussey, those two gentlemen, Ottinger and Petitioner's son, Edward Dicks, went to see Petitioner's grey watermelon crop in Columbia County. Prior to arriving at the field, no discussion had been entered into between the Petitioner and Hussey as to price. While at the field Petitioner offered to sell the entire field of watermelons, and Hussey declined the purchase. At that juncture Hussey was not aware of any particular market in which he might place the Petitioner's watermelons. Hussey did indicate that if he were able to find a market for those crops, he would pay Petitioner the fair market value per pound for those watermelons on a given day. He further stated that the fair market price on June 21, 1984, was four cents a pound for large and 3.5 cents a pound for medium greys. The market price considerations at work, as Hussey envisioned them, had to do with the market conditions in New York, New England and Canada, places where the watermelons would be delivered. It also was important that the watermelons be delivered prior to July 4, 1984. The importance of this date had to do with the demand for watermelons for retail purchase prior to July 4, 1984, and a softening market immediately subsequent to that date. The discussion as to price was made in the presence of Petitioner, his son, and Hussey. There was no other discussion concerning the purchase price of the grey variety of watermelon, and no written document evidences this oral discussion of price. Following the conversation of June 21, 1984, in which price was discussed between the Petitioner and Hussey, the grey watermelons which Petitioner had in Columbia County were available for harvesting. One or two days after this conversation, the first loads of watermelons were harvested. Although Petitioner believes that 17,000 pounds of medium watermelons were harvested with the balance of the watermelons taken on that day being large watermelons, it is found that the 17,000 pounds related to large watermelons with the balance being medium watermelons. This pertains to Petitioner's Exhibit Number 1 admitted into evidence which contains the composite invoices for those loads together with poundage and price. Seventeen thousand pounds relates to the large at 3.5 per pound with the balance of the weights pertaining to mediums at three cents per pound. The net amount paid after deducting the cost of harvesting was $3,085.78. On July 2, 1984, additional medium and large grey watermelons were harvested from the Petitioner's Columbia County fields, through J. R. Sales, Inc. A copy of the composite invoices related to the latter, together with a description of the sizes, weights, and prices paid with deduction of harvesting cost, may be found in Petitioner's Exhibit Number 3 admitted into evidence. Price paid was 2.5 cents per pound for medium greys and three cents per pound for large greys. These watermelons were watermelons which would not have arrived at J. R. Sales' markets in time meet the July 4, 1984, peak sales period. The total amount paid for this July 2, 1984, harvest of greys was $5,104.75. 6..Watermelons purchased from the Petitioner had to be placed in markets other than those normally served by J. R. Sales, Inc. In the period June 23 through June 25, 1984, J. R. Sales, Inc. bought watermelons from other farmers in the growing area and paid prices for large greys which varied from three cents to 3.5 cents per pound. The price being paid for medium greys in that time frame was three cents per pound, to a farmer other than Petitioner. In the same sequence of days, 3.5 cents per pound was paid for a purchase of large jubilees from another farmer. On the subject of large jubilees, Hussey had been shown a field of jubilee watermelons that were grown by Petitioner in Columbia County. When shown the melons, he indicated that he was not interested in purchasing them. Nonetheless, J. R. Sales, Inc. harvested large jubilee watermelons from that field and paid $1,529.15 for them. Payment was made to Petitioner at a rate of three cents per pound less harvesting cost. Petitioner's son was aware of this harvesting of the large jubilees. The composite invoices related to the large jubilees may be found in Petitioner's Exhibit Number 2 admitted into evidence, a copy. This document shows the invoice numbers, the size, the price per pound and weight together with the gross price less harvesting cost and the net payment price. These watermelons were harvested on June 28, 1984. Even though there was no discussion as to price of the jubilees, Petitioner was of the opinion that four cents a pound for large jubilees should be the price, a price never agreed to by J. R. Sales, Inc. Sherod Keen, another individual who brokered and purchased watermelons in the area of Columbia County, Florida, in 1984 gave testimony. His testimony established that in the period June 21 through June 28, 1984, he was paying farmers a price between 3.5 cents to four cents per pound for medium greys and four to 4.5 cents per pound for large greys. On July 2, 1984, Keen was paying 3.5 to four cents for large greys. Keen agreed with Petitioner and Hussey that the cutoff date prior to July 4, 1984, is critical in terms of the price to be paid, in that watermelons delivered to the market prior to July 4, 1984, would bring a better price than those prices immediately following July 4, 1984. Keen sells in places such as Florida, Maine and Wisconsin. Keen was not interested in purchasing the watermelons which Petitioner sold to J. R. Sales, Inc. Hussey, Keen and Ottinger established through their testimony that the prices for watermelons varied day to day within the relevant time frame, June and July, 1984.
