The Issue Whether Respondent owes Petitioner $41,783.69 as alleged in the complaint filed on December 2, 1996.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner, Lenard Powell (Petitioner), is a watermelon farmer in Lake Panasoffkee, Florida. Respondent, Joe Marinaro (Respondent), is a licensed dealer in agricultural products doing business as Atlantic Fruit Company in Fort Pierce, Florida. He has been in the business for more than forty years and has an unblemished record. As a licensed dealer, Respondent is subject to the regulatory authority of the Department of Agriculture and Consumer Services (Department). Respondent has posted a bond written by Reliance Insurance Company, as surety, to assure proper accounting and payment to producers such as Petitioner. In a complaint filed with the Department on December 11, 1996, Petitioner alleged that he entered into an agreement with Howard Bailey (Bailey) on behalf of Tom Lange Company (Lange), a distributor of fresh fruits and vegetables, to market his 1996 watermelon crop. Under that alleged agreement, Lange would advance "up front seed money, $900.00 per trailer for labor advance, when road truck crossed the scales, [and] supply the boxes and cartons which were to be deducted from the final payment." According to the complaint, Petitioner was to pay Lange and Bailey "a fee of one cent per pound on seeded varieties and two cents per pound on seedless watermelons." The complaint goes on to allege that in May 1996, Bailey advised Petitioner that he no longer represented Lange, but now represented Respondent, and "the deal was still the same." Finally, Petitioner has alleged that the final summary from Respondent "had inconsistent weights, document numbers and prices" and that Petitioner's calculations showed an unaccounted for balance of $45,506.97. As amended at hearing, Petitioner now claims he is owed $41,783.63. In his Amended Response, Respondent contends that even though the agreement called for him to have an exclusive right to sell Petitioner's 1996 crop, a portion of the crop was sold directly by Petitioner or Bailey to third parties without Respondent's knowledge. He further contends that the watermelons were to be sold on a twenty percent of gross proceeds commission basis rather than the one and two cents per pound commission basis alleged in the complaint. Respondent also asserts that some of the watermelons were dumped because of spoilage and that a part of the bins or cartons were packed with oversize watermelons, thus "short-counting" the number of melons in each container. This resulted in the buyers making deductions upon delivery of the produce. After taking these factors into consideration, Respondent claims that no money is owed. The Agreement It is customary in the watermelon business to enter into agreements to buy and sell watermelons without a written contract. Therefore, it was not unusual for the parties to base their agreement on a handshake or verbal understanding. Bailey is a "part-time watermelon broker," farmer, and owner of Bailey Farms, Inc., in Schoolcraft, Michigan. Although he says he has been licensed as a dealer in the past, Bailey had no license or bond when these events occurred. Bailey has had dealings with Respondent since around 1989. In 1995, Bailey was involved in a "relationship" with Lange in which they worked "joint deals" splitting profits and commissions. Under that relationship, Bailey would arrange to market a grower's watermelons through Lange's customers and split the profits or commissions with Lange. In November 1995, two Lange representatives (Phil Gumpert and Michael E. Smith) and Bailey met with Petitioner in Wildwood, Florida, for the purpose of exploring the possibility of marketing Petitioner's 1996 crop. Under the arrangement proposed by Lange, Petitioner would receive the proceeds from the sale of his watermelons handled by Lange, less a commission, less the usual and customary weight differences between the gross weight shipped and the net weight paid by buyers, less the advances made by Lange for plants, seeds, materials and supplies, and less deductions for non-conforming watermelons in general, improper sizing, inaccurate counts in bins, and oversizing in cartons. As to the amount of commission, Lange proposed to charge twenty percent of gross sales proceeds. Bailey acknowledges that Petitioner initially balked at paying a twenty percent commission on the ground that amount was too high but contended he eventually agreed to that figure when it was explained there was no incentive for the dealer to get a good price for the watermelons if the dealer was paid a flat one or two cents per pound commission. Petitioner contends, however, that he did not agree with this amount and instead wanted only to pay one cent per pound for seeded watermelons and two cents per pound for seedless watermelons. His version of the events is accepted as being the most credible, and thus it is found that, as of November 1995, there was no agreement on that issue. It is noted that except for the amount of commissions, Petitioner basically agreed with all other terms and conditions discussed by Lange and Bailey. In view of the lack of agreement on the amount of the commission, there was no meeting of the minds by the parties. This was confirmed by Michael Smith, a Lange representative, who described the meeting as simply "exploratory" in nature and nothing more. Sometime after the meeting, Lange sent Petitioner an unsigned copy of a "Marketing Agreement" which contained the terms under which Lange would advance moneys to Petitioner in return for an exclusive right to sell his 1996 crop. The agreement was sent to Petitioner merely "as an example" in the event the parties might reach an agreement. It contained terms and conditions pertaining to commission, grower advances, and other relevant considerations. Paragraph 7 of the agreement called for the dealer to receive "a commission equal to twenty percent (20%) of the final gross selling price of each shipment." After receiving the agreement, Petitioner consulted his attorney, who at that time was his father-in-law. The attorney lined out a part of the provision relating to commissions, and in paragraph 8, he inserted a requirement that the dealer provide Petitioner with a "verified" accounting of the sales. However, the amended agreement was never signed by Petitioner nor returned to Lange or Bailey. Petitioner did not immediately notify Lange orally or in writing that he was dissatisfied with the terms described in the agreement. It was his intention, however, to further negotiate the amount of the commission. A short time later, he contacted Bailey regarding his disagreement with the amount of commission and was told by Bailey, "don't worry about it." Based on this conversation, Petitioner assumed that only a one or two cents commission would be paid and that an agreement had been formed. Bailey never conveyed Petitioner's concerns to Lange. Events Prior to the Harvesting of the Crop Petitioner received and accepted advances of funds for plants, seeds, and materials to produce the watermelons. While the precise amount is not known, it approximated around $40,468.00. A part of these moneys initially came from Bailey and the remainder from Respondent. Petitioner used these funds to plant and harvest his 1996 watermelon crop. In March 1996, Bailey learned that because the venture "was not attractive," Lange was no longer interested in marketing Petitioner's watermelons. Indeed, in his deposition testimony, a Lange representative suggested that an agreement between Lange and Petitioner had never been reached before Lange bowed out of the picture. In any event, because Bailey had cash invested in the venture, and he was in dire need of a new broker with financial backing and customers to buy the watermelons, he contacted Respondent to ascertain if he was interested in the venture. Among other things, Bailey represented that in return for Respondent providing up-front money to Petitioner, Respondent would have an "exclusive right of sale" and they would share in a twenty percent commission. It is noteworthy that Bailey did not show Respondent a copy of the Marketing Agreement previously sent by Lange to Petitioner, and he did not tell Respondent that Petitioner would pay a commission of only one cent per pound for seeded watermelons and two cents per pound for seedless watermelons. Based on Bailey's less than candid representations, Respondent agreed to take Lange's place in the venture. Under their arrangement, Bailey and Respondent had a community of interest in a common purpose, that is, the sale of Petitioner's crop. By virtue of the exclusive right of sale, they had joint control or right to control to whom they sold the watermelons. In addition, the two had joint control or right to control a checking account established in Michigan for that venture. They intended to share profits by splitting the commissions, and they likewise intended to share in any losses. Finally, they both expended their knowledge, time, labor, and skill in furtherance of the joint venture. Around April 1996, Bailey contacted Petitioner and advised him that Lange was no longer in the transaction, but that Respondent's company, Atlantic Fruit Company, would stand in Lange's shoes and handle the watermelons on the same basis as they had previously agreed. Because Respondent had a good reputation and a sufficient bond, Petitioner agreed to the substitution of dealers. Petitioner and Respondent did not discuss the terms and conditions of the agreement, including the amount of commissions to be paid, since they both relied on the representations of Bailey. The Sale of the Produce In all, fifty loads of watermelons were shipped from Petitioner's field at the direction of either Respondent or Bailey. Because Petitioner never received bills of lading for two of those shipments, and he has abandoned a claim as to those two, only forty-eight shipments are in dispute. Without Respondent's knowledge, Petitioner sold eight loads of watermelons directly to third parties and received a total of $21,069.70. These proceeds were used by Petitioner to pay labor costs. Bailey knew and agreed to the third party sales. Bailey sold thirteen loads of watermelons without Respondent's knowledge. On these loads, Bailey was paid a commission of one cent per pound of the weight of the melons, which amount is consistent with the parties' agreement. Bailey did not split the commission he received on these loads with Respondent. These transactions reinforce the view, as more fully discussed below, that Bailey knew that Petitioner had agreed to a different commission basis than the one he described to Respondent. Petitioner kept track of the harvest by making notes in a "log book." The log book contains the date, variety of watermelon, net weights, and price per pound that he was to receive. The book was prepared contemporaneously. In addition to the log book, Petitioner was given a copy of a bill of lading for each truck load of watermelons that was shipped. The bills of lading indicated the weight, variety, broker, and destination and were prepared on forms of either Atlantic Fruit Company or Bailey Farms, Inc. Petitioner's claim is comprised of five categories. First, he is claiming the difference between the twenty percent commission charged by Respondent and the one or two cents commission to which he agreed. Second, he is claiming the value of the weight difference between what the buyer received and what was shipped from his fields and recorded on the bills of lading. Third, he is claiming the difference between what the buyer paid per pound and the price per pound Petitioner reflects in his log book. Fourth, Petitioner is claiming the amount the buyer deducted from the purchase price because of spoilage or short counts. Finally, Petitioner claims the unaccounted weight shortage in watermelons shipped by Bailey to Bailey's cooler in White Springs, Florida. Each of these categories will be discussed below. Twenty percent commission Petitioner first contends he is owed the difference between a twenty percent commission charged on thirty-five shipments by Respondent and the one and two cents per pound commission to which he agreed. The total amount in controversy is $14,503.18. The underlying documentation for these loads is found in Petitioner's Exhibits 1, 5, 7, 9, 10, 12, 13, 15-20, 23- 28, 31, 33-39, and 41-48. The evidence established that, consistent with Petitioner's claim, it is customary in the industry that brokers receive a one cent per pound commission for the sale of seeded watermelons and a two cents per pound commission for the sale of seedless watermelons. While Bailey contended at hearing that some growers were paying a twenty percent commission on seedless (but not seeded) watermelons, he could not identify any such growers. Further, in deposition testimony, Lange acknowledged that it had no customers in Florida in 1996 using that commission basis. Finally, on thirteen loads sold directly by Bailey to third parties, he was paid a one cent per pound commission, which is consistent with Petitioner's position. Given these considerations, the undersigned is persuaded that Petitioner never agreed to a twenty percent commission arrangement. Therefore, Petitioner is only obligated to pay a one cent per pound commission on seeded watermelons and two cents per pound on seedless watermelons sold by Respondent. Petitioner is entitled to reimbursement for the difference between a twenty percent commission and the agreed upon amount. Since it was not shown that Petitioner's suggested amount of $14,503.18 should be modified if adjustments to other claims are made, that amount is found to be appropriate. This amount, however, should be offset by the commission which Respondent should have received from Petitioner for the sale by Petitioner of eight loads of watermelons to third parties. This is because those sales contravened the parties' agreement that Respondent had an exclusive right to sell all of Petitioner's 1996 crop since he had advanced the money to produce and harvest the crop. While Respondent is also entitled to share in the commission received by Bailey for thirteen loads sold by Bailey to third parties without Respondent's knowledge, Respondent's remedy is against Bailey, and not Petitioner. Buyer deductions Petitioner contends that he is owed $7,121.99 for miscellaneous deductions improperly made by the buyers. In this case, the buyers made deductions for short counts, that is, there were fewer watermelons in a bin or carton than are normally packed in a standard size carton or bin. The underlying documentation for this portion of the claim is found in Petitioner's Exhibits 15, 17, 24, 25, 28, 29, 36, 38, 39, 41, and 43-46. For the following reasons, this claim is found to without merit. The custom and usage in the industry is for the grower to provide good and marketable quality watermelons at the size and state of maturity required by the buyers. Petitioner experienced harvesting problems, and his watermelons were too large, resulting in improper sizing, inaccurate counts in bins, and oversizing in cartons. This ultimately affected the number that could be packed into a carton or bin and resulted in many containers having fewer watermelons than are normally packed. Under these circumstances, the buyers made deductions for non-conforming watermelons. Petitioner argues that he should have been consulted by Bailey or Respondent and allowed to request a government inspection each time a buyer found a non-conforming load. The evidence shows, however, that this would have been impractical, time-consuming, and futile since an inspection would simply confirm that there was a short count in the bins. Moreover, given the time of the year (June 1996), inspections may well have caused additional spoilage since loads would remain unpacked in the truck in the hot weather until a government inspector became available. Then, too, the inspection process would tie up the facilities of the buyer until the process was completed. Weight differences Petitioner next contends that he is owed $5,064.23 for the difference in weight shown on the bills of lading and the weight the buyer received. In other words, on thirteen shipments, the delivered weight was less than the weight shown on the bill of lading. These shipments are documented in Petitioner's Exhibits 2, 4, 6, 8, 9, 11, 14, 16, 21, 22, 30, 32, and 40. The usual and customary practice in the industry is for the buyer to pay for the delivered weight of watermelons and not the shipped weight. In this case, most of the weight differences occurred with respect to bulk load shipments of watermelons. The evidence shows that it is not unusual for bulk load shipments to have weight differences of up to 2,000 pounds. For differences of more than 2,000 pounds, the standard practice is for the broker to contact the grower, advise that there is a problem, and ask if the grower desires a government inspection. The shipments identified in Petitioner's Exhibits 2, 6, 8, 11, 14, 22, 30 and 32 had weight differences of less than 2,000 pounds and therefore were not unusual. On the remaining five loads, however, Petitioner was not told that there was a problem, nor was he asked if he wanted a government inspection. This was contrary to industry practice. Accordingly, as to the shipments identified in Petitioner's Exhibits 4, 9, 16, 21, and 40, Petitioner should be compensated for the difference between the delivered weight and the bill of lading, or $4,420.53, less any commissions due Respondent. Log price differences Petitioner next contends that he is entitled to $7,489.55 for the price difference between the log book price and the price paid by the buyer. In other words, he is contending that he was guaranteed a certain sales price, but the produce was sold for a lesser amount. To determine the amount allegedly due, Petitioner multiplied the difference between his log book price per pound and what the buyer paid per pound times the weight received by the buyer. The standard practice in the industry is that a broker or dealer does not guarantee a price for the grower when the produce is being handled on a commission basis. The dealer is simply obligated to make a "best effort" to get the top price back to the farmer. This industry practice was incorporated into the Marketing Agreement, and Petitioner was aware of this industry standard. Although Petitioner may have been led to believe by Bailey that he would receive a specified amount per pound on some future loads, and Petitioner then recorded that amount in his log book, there was no way that such a price could be guaranteed until the produce was actually sold to the buyer. Accordingly, Petitioner is only entitled to be paid the amount for which the watermelons were sold. Therefore, this portion of his claim should be denied. Cooler loads Finally, Petitioner has claimed reimbursement in the amount of $7,513.74 for 47,798 pounds of watermelons shipped to a cooler in White Springs, Florida, for which he alleges he never received any compensation. The underlying documents for this claim are found in Petitioner's Exhibits 49 through 55. Because some watermelons were ripe in the field but still unsold, and Bailey did not want them to spoil, he shipped seven loads to a cooler in White Springs for storage for delivery on future sales. Bailey had leased the cooler for just this purpose. The total weight shipped from Petitioner's farm to the cooler was 271,464 pounds. The total weight sold from the cooler was 213,666 pounds, or a difference of 57,798 pounds. Through no fault of Bailey, however, some of the produce became spoiled and had to be dumped. According to Bailey, at least 40,000 pounds or more were dumped. However, the individual who was in charge of the cooler, William G. Poucher, estimated the amount to be no more than 10,000 pounds. Poucher's testimony is accepted as being more credible on this issue. This left approximately 47,798 pounds of unaccounted watermelons, for which Petitioner should be compensated. Petitioner apparently calculated his claim by multiplying the unaccounted weight (47,798) by an average price of around fifteen cents per pound to arrive at a figure of $7,513.74. This yardstick has not been challenged, and it is accordingly found that Petitioner is owed $7,513.74, less any commissions due Respondent. Respondent has contended that because the cooler movements were never disclosed to him by Bailey and Petitioner, he should not be held liable for any missing produce. However, the shipments were made at the direction of Respondent's agent and partner, Bailey, and thus he should be accountable for the actions of his agent/partner. Respondent also suggests that the 47,798 pounds of unaccounted watermelons were non-conforming produce unable to be sold. The more credible evidence suggests otherwise.
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 the moneys discussed in paragraph 44. In the event payment is not timely made, the surety should be responsible for the indebtedness. DONE AND ENTERED this 18th day of November, 1997, 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 (904) 488-9675, SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day 18th of November, 1997. 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 Felix M. Adams, Esquire 138 Bushnell Plaza, Suite 201 Bushnell, Florida 33516 Richard D. Sneed, Esquire 1905 South 25th Street Suite 206, Mardi Executive Center Fort Pierce, Florida 34947 Nick Cerulli, Esquire Bond Claim Department Reliance Insurance Company 4 Penn Center Plaza Philadelphia, Pennsylvania 19103 Richard D. Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue Whether or not Petitioners (complainants) are entitled to recover $5,640.19 or any part thereof against Respondent dealer and Respondent surety company.
Findings Of Fact Petitioners are growers of watermelons and qualify as "producers" under Section 604.15(5) F.S. Respondent Eddie D. Griffin d/b/a Quality Brokerage is a broker-shipper of watermelons and qualifies as a "dealer" under Section 604.15(1) F.S. Respondent United States Fidelity & Guaranty Company is surety for Respondent Griffin d/b/a Quality. Petitioners' claims against the dealer and his bond are listed in the Amended Complaint in the following amounts and categories: 6-18-92 Inv. #657 45,580 lbs. Crimson melons @ .05 lb. $2,279.00 Advance - 700.00 NWPB* - 9.12 $1,569.88 6-19-92 Inv. #668 2,490 lbs. Crimson melons @ .05 lb. $ 124.50 (paid for 42,860 lbs. short 2,490 lbs.) NWPB* - .50 124.00 6-20-92 Inv. #695 6,818 lbs. Crimson melons @ .05 lb. $ 340.90 (paid for 39,062 lbs. short 6,818 lbs.) NWPB* 1.36 339.54 6-20-92 Inv. @ #702 .05 39,880 lbs. Sangria melons lb. $1,994.00 Advance - 700.00 Packing Straw - 10.00 NWPB* - 7.98 Pmt. - 90.00 1,186.02 6-21-92 Inv. @ #706 .05 44,740 lbs. Sangria melons lb. $2,237.00 Advance - 700.00 Packing Straw - 10.00 NWPB* - 8.95 1,518.05 6-22-93 Inv. @ #716 .04 11,280 lbs. Crimson melons lb. NWPB* - 2.32 460.88 6-22-92 Inv. @ #709 .04 46,740 lbs. Crimson melons lb. $1,869.60 Advance - 700.00 Packing Straw - 10.00 NWPB* - 9.35 1,150.25 Deducted for #706 - 441.82 441.82 PAID 708.43 Total Claimed $5,640.19 *NWPB = National Watermelon Promotion Board Fee Petitioners and Respondent dealer have had an oral business relationship for four to five years. Both parties agree that their oral agreement initially called for a federal inspection to be done on each load if the load were refused in whole or in part by the ultimate recipient. Respondent Griffin contended that over the years there had been further oral agreements to "work out" or "ride out" small discrepancies or partial refusals of loads without resorting to federal inspections, the cost of which inspections could eliminate the entire profit on single loads. Petitioners denied that such an amended oral agreement was ever reached and further maintained that the amounts of the loads at issue herein could not be considered "small" by any interpretation. Respondent submitted no evidence as to what the relative terms, "large" and "small," mean in the industry. Consequently, it appears that there was never a meeting of the minds of the parties on the alleged oral contract amendments relied upon by Respondent. Respondent testified that in past years, prior to 1992, he had interpreted the term "ride it out" to mean that he would simply accept the hearsay statements of ultimate recipients that named poundages of melons were bad and he would let the ultimate recipients pay for only the melons they said were good. Respondent would thereafter absorb any losses himself, not passing on the loss by deducting any amount from the full amount he would normally pay to the growers within ten days. However, 1992 was such a bad year for melons that the Respondent dealer chose not to absorb the greater losses and passed them on to the growers by way of deductions on "settlement sheets." In 1992 Respondent sent Petitioners the settlement sheets with the deductions explained thereon with the net payments as much as thirty days after the ultimate sales. Upon the foregoing evidence, it appears that Respondent had established a course of business whereby Petitioners could reasonably have expected him to absorb any losses occasioned by Respondent's reliance on hearsay statements of the ultimate recipients concerning poor quality melons unless Respondent chose not to test the questionable melons with a federal inspection. Petitioners obtained Exhibit P-5 for load 657 at Respondent dealer's place of business, but were not certain it applied to the load Mr. Tucker claimed he delivered to Respondent on 6-18-92 because Mr. Tucker did not know his load number that day. The exhibit represents the weight ticket Petitioners believe applies to the load which Mr. Tucker claimed to have delivered to Respondent dealer on 6-18-92. However, the exhibit bears two other names, "Jones and Smith," not Petitioners' respective names of Tucker or Watson. It has "WACC" handwritten across it, which Mr. Tucker claimed signified the name of his watermelon field. The number "657" also has been handwritten across it. There is no evidence of who wrote any of this on the exhibit. Respondent denied that load 657 was received from Mr. Tucker. The exhibit shows a printed gross weight of 78,900 lbs., tare weight of 32,860 lbs. and net weight of 66,800 lbs. Net weights are supposed to signify the poundage of melons delivered to the dealer. Nothing on the exhibit matches Mr. Tucker's journal entry (Petitioners' Exhibit 3) of delivering 45,580 lbs. of watermelons to Respondent dealer on 6- 18-92. Mr. Tucker testified that he was never paid for his delivery. Respondent denied there was such a delivery and testified that he paid Jones and Smith for load 657. Petitioners have established no entitlement to their claim of $1,569.88 on Invoice 657. Petitioners' Exhibit P-4 represents two weight tickets secured from Respondent dealer's records that Petitioners contend apply to load 668. The first page has "45,350/6-19-92/Scott Tucker WACC" handwritten across it. None of the four poundages imprinted thereon match any of the amounts claimed by Petitioners for invoice 668, and subtracting amounts testified to also does not conform these figures to Petitioners' claim on load 668. The second page weight ticket shows a date of 6-18-92 and a weight of 34,260 lbs. It also does not match Petitioner's claim that they were owed for 45,350 lbs. but were paid for only 42,860 lbs., being paid 2,490 lbs. short. Exhibit P-8 is the 668 invoice/settlement sheet which Respondent provided to Petitioners and shows invoice 668 with date of 6-19-92, tare and pay weight of 42,860 lbs. at $.05/lb. for $2,143.00 less $8.57 melon adv. association (a/k/a NWPB, see supra) for $2,134.43, less a $700.00 advance and $10.00 for packing straw for a total due Petitioners of $1,424.43 which Respondent has already paid. Petitioners have established no entitlement to their claim of $124.00 on Invoice 668. Petitioners Exhibit P-6 represents two weight tickets secured from Respondent dealer's records. The first page has "45,880 lbs./6-20-92/Scott Tucker Crimson WACC 695" handwritten across it. None of the printed gross, tare, or net weights thereon match any of the amounts claimed by Petitioners for invoice 695. The second page shows the date 6-20-92 and a printed net weight of 32,000 lbs. Respondent dealer provided Petitioners with Exhibit P-7, invoice/settlement sheet 695 dated 6-20-92 showing tare and pay weights of 39,062 lbs. priced at $.05/lb. totalling $1,953.10, less melon adv. assoc. (a/k/a NWPB) fee of $7.81, for $1,945.29, less $700.00 advanced, less $10.00 for packing straw for a total of $1,235.29. The foregoing do not support Petitioner Tucker's claim based on his journal entry (P-3) that he was entitled to be paid for 45,880 lbs. he claims he delivered that day instead of for 39,062 pounds (short by 6,818 pounds) with balance owing to him of $339.54. Respondent has paid what was owed on invoice 695. By oral agreement at formal hearing, Petitioners' Composite Exhibit 9 shows that Petitioner Tucker delivered 39,880 lbs. of melons to Respondent dealer on 6-20-92 and Petitioner Watson received back from Respondent dealer an invoice/settlement sheet 702 showing 39,880 pounds @ $.05/lb. equalling $1,994.00 and that although $1,994.00 was owed Petitioners, Respondent thereafter subtracted for $800.00 worth of returned melons, a $700.00 advance, $7.98 for melon adv. association (a/k/a NWPB), and $10.00 for packing straw, and that a balance was paid to Petitioners of only $90.00. This is arithmetically illogical. The subtractions total $1,517.98. Therefore, if all of Respondent's subtractions were legitimate, the total balance due Petitioners would have been $476.02. If the right to deduct for the $800.00 in returned melons were not substantiated by Respondent dealer, then Petitioners would be due $1,276.02. Since all parties acknowledge that $90.00 was already paid by Respondent dealer, then Petitioners are due $1,186.02 if Respondent did not substantiate the right to deduct the $800.00. Load 702 was "graded out," i.e. accepted as satisfactory, by a representative of Respondent dealer or a subsequent holder in interest when the melons were delivered by Petitioners to Respondent dealer. That fact creates the presumption that the melons were received in satisfactory condition by the Respondent dealer. Nothing persuasive has been put forth by the Respondent dealer to show that the situation concerning the melons' quality had changed by the time the load arrived at its final destination. Respondent got no federal inspection on this load and relied on hearsay statements by persons who did not testify as to some melons being inferior. In light of the standard arrangement of the parties over the whole course of their business dealings (see Findings of Fact 5-7 supra), Petitioners have proven entitlement to the amount claimed on load 702 of $1,186.02. By oral agreement at formal hearing, Petitioners' Composite 10 shows Petitioners Tucker and Watson delivered 44,740 lbs. of melons to Respondent dealer on 6-21-92. At $.05/lb., Petitioners were owed $2,237.00, less melon adv. association fee (a/k/a NWPB) of $8.95, $700.00 for an advance, and $10.00 for straw. Those deductions are not at issue. Therefore, Petitioners would be owed $1,518.05, the amount claimed, from Respondent. However, the invoice also notes that Respondent made a $268.18 deduction for melons returned. Respondent's Composite Exhibit 1 purports to be a BB&W Farms Loading Sheet and Federal Inspection Sheet. Respondent offered this exhibit to show that only $68.18 was realized by him on load 706 which he attributed to Petitioner Watson. However, the federal inspector did not testify as to the results of the inspection, the inspection sheet itself is illegible as to "estimated total," the "estimated total" has been written in by another hand as "$62.60," and there was no explanation on the Composite Exhibit or in testimony as to how Respondent dealer came up with $200.00 in "return lumping charges" as also indicated on Exhibit R-1. Accordingly, Petitioners have established that with regard to load/invoice 706, they delivered watermelons worth $2,237.00 to Respondent dealer and Respondent dealer did not affirmatively establish that any melons were bad, despite the federal inspection sheet introduced in evidence. Petitioners have proven entitlement to their claim on invoice 706 for $1,518.05. However, Petitioners conceded that Respondent actually paid them $441.82 on invoice/settlement sheet 706. Therefore, they are only entitled to recoup a total of $1,076.23 on their claim for Invoice 706. In the course of formal hearing, Respondent dealer admitted that, with regard to load invoice 716, (Tucker) he did owe Petitioners $460.88 for 275 watermelons, and that it had not been paid purely due to clerical error. By oral agreement at formal hearing, Petitioners' Composite Exhibit 12 (Invoice and Weight Tickets 709, Watson) shows Petitioner Watson delivered 46,740 lbs. of melons to Respondent dealer on 6-22-92 and at $.04 lb., Petitioners were owed $1,869.60, less appropriate deductions. Petitioners conceded that Respondent dealer appropriately deducted $9.35 for melon adv. association (a/k/a NWPB), $700.00 for an advance, and $10.00 for packing straw, bringing the amount they were owed to $1,150.25. Petitioners and Respondent are in agreement the Respondent paid only $708.43 of the $1,150.25 owed on invoice/settlement sheet 709 because Respondent dealer also deducted from the amount owed on invoice 709 the $441.82 he had previously paid out on Invoice 706. See, Finding of Fact 13, supra. Since Petitioners have established that they were owed $1,518.05 on invoice 706 but were paid only $441.82 thereon, it appears that Petitioners should be paid $1,076.23 on Invoice 706 and realize nothing on Invoice 709.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Agriculture enter a final order awarding Petitioners $1,186.02 on invoice 702, $1,076.23 on invoice 706, and $460.88 on invoice 716 for a total of $2,723.13, dismissing all other claimed amounts, and binding Respondents to pay the full amount of $2,723.13, which in United States Fidelity & Guaranty Company's case shall be only to the extent of its bond. RECOMMENDED this 30th day of June, 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 30th day of June, 1993. COPIES FURNISHED: Scott Tucker and Phillip Watson Route 2 Box 280 Trenton, FL 32693 Eddie D. Griffin d/b/a Quality Brokerage Post Office Box 889 Immokalee, FL 33934 William J. Moore USF&G Post Office Box 31143 Tampa, FL 33631 United States Fidelity & Guaranty Company Post Office Box 1138 Baltimore, MD 21203 Brenda Hyatt, Chief Department of Agriculture Division of Marketing, Bureau of Licensure and Bond Mayo Building Tallahassee, FL 32399-0800 Honorable Bob Crawford Department of Agriculture and Consumer Services Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, Esquire General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810
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 purchased from Petitioner. The factual issues are whether the contract between the parties limited the warrantee of merchantability, and whether melons were of good quality on arrival, and, if not, who was responsible for the failure to meet quality standards.
Findings Of Fact During the 1996 season, the Petitioner contracted with Respondent to sell several loads of watermelons. The claim identified the various loads of melons by date and weight as follows: DATE POUNDS PRICE CLAIM 6/23 44,010 $.04 $1760 6/25 40,300 $.04 $1612 6/25 40,260 $.04 $1610 6/25 41,640 $.04 $1666 6/26 15,750 $.04 $ 600 The Respondent used file numbers to identify the loads which were purchased from Petitioner. These were co-related with the Petitioner’s information by date. The Respondent reduced the amount remitted to the Petitioner on the following loads due to shrinkage (loss of weight during transit) and loss of decayed melons on file number 96057. The Petitioner stated at hearing that, while he had added them to the claim, the differences between his claims and Respondent’s accounting were within the shrinkage and loss limits. The Respondent owed the Petitioner $4,832 on the following: DATE FILE NO. WEIGHT PAID 6/23 96055 43,659 $1746 6/25 96056 39,240 $1570 6/25 96057 38,080 $1516 The controversy between the parties centered upon file numbers 96058 and 96065. Both parties agree regarding the weight of the melons shipped and the price per pound. File number 96058 consisted of 41,640 pounds of melons sold at $.04 per pound. The shipment was sold to Provigo Distribution, Inc. on June 25, and the melons were to be Peewee sized melons (melons weighing 14-17 pounds). The Petitioner loaded the melons on a truck provided by Provigo, and Respondent did not have a person present to inspect the load when it was loaded. The Petitioner asserts that title to the melons transferred when they were loaded on the truck, and that Respondent was liable for the product thereafter. The Respondent acknowledges that it accepted title for the melons when loaded on the truck at the field, but that terms also provided that the melons would be of a specified size and would be of good quality upon delivery. There was no written contract limiting the warrantee of merchantability. Provigo refused acceptance of the melons because they were too big. The melons were around 21 pounds or small mediums (18-24 pounds). When the Respondent sought to sell the melons to another buyer, the buyer had the melons inspected, and 57 percent of the melons were rejected: 15 percent for sunburn, 7 percent for bruising, 10 percent for whitish pink flesh, and 25 percent as overripe. The Respondent introduced a copy of the documents showing the original sale price to Provigo, rejection, inspection and accounting upon resale. The Respondent had sold the melons related to file number 96058 to Provigo for $.06 a pound with Provigo paying the freight. The Respondent would have made $2498.40 on the sale to Provigo. Upon rejection, the Respondent was responsible to Provigo for the transportation costs ($.05 per pound) for the entire load or $2082. The Respondent obtained $613.84 from the sale of the melons after their rejection. File number 96065 related to a partial load which Petitioner had sold on June 26th to Respondent in response to Respondent’s request for Peewee size melons. Petitioner was only able to supply a partial load of 15,750 pounds. These were moved on June 26th from Florida to Georgia, where on June 27th, the truck was finished off with large melons from another farmer. The Respondent had an agent who was in Georgia where the melons were shipped immediately in order to add additional melons to the load. This agent had the authority to purchase melons and cull melons for Respondent, and was in contact with Respondent during the period the truck carrying Petitioner’s melons was waiting. The agent also knew the load was to be shipped to Canada for sale. Respondent’s agent in Georgia saw that the Peewees loaded from Petitioner were spotted, leaking, and decayed prior to loading the large melons. These melons were shipped to Canada at a cost of $.05 a pound for a total of $1138 where the Peewees from Respondent were rejected because of decay. Their condition was such that they could not be given away, and a disposal charge of $350 was charged to Respondent. The Respondent in rendering an accounting of the transaction to Petitioner charged Petitioner $1138 for the transportation of the 15,750 pounds of melons to Canada and $350 for their disposal.
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 the Petitioner a total of $2523 and providing Respondent a reasonable amount of time to produce proof of payment of this amount to Petitioner. DONE and ENTERED this 15th day of May, 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 15th day of May, 1997. COPIES FURNISHED: Bo Bass, President Bass Farms, Inc. 2829 Southwest SR 45 Newberry, FL 32669 H. Joseph Heidrich 260 Maitland Avenue, Number 1000 Atlamont Springs, FL 32701 Brenda Hyatt, Chief Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, FL 32399-0800 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, FL 32399-0810 Bob Crawford, Commissioner Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810
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 issue in this case is whether Petitioner is entitled to payment in connection with the sale of watermelons in June, 1992.
Findings Of Fact Petitioner grows watermelons. He has only done business with Respondent Jim Rash, Inc. (Respondent) in 1991 and 1992. In both of those years, Petitioner was responsible for the hiring of the crews to pick the melons and load the trailers. Respondent obtained receivers who supplied the trailers and then drove them to the markets, which are typically up north. In 1991, Respondent paid for two of the seven loads at the weighing scales and the remainder a few days later. It is unclear whether the latter payment was made before the shipments were received by the wholesalers and retailers from the shippers or receivers. In 1991, as in 1992, the parties maintained no documentation indicating when Respondent became liable for payment to Petitioner. The parties agree that the subject sale was not a sale on consignment. The price of the watermelons was fixed. Petitioner testified that the sale was to Respondent and complete once the weighing was completed and the final price could be calculated. Petitioner might allow a few days to pass before payment, but this, according to Petitioner, was only a convenience to Respondent. Respondent's representative testified that the role of Respondent was to find receivers who shipped the melons to wholesale or retail markets. If the melons were rejected there, then Petitioner was not due payment for the rejected melons. Perhaps the major problem for the parties is that 1992, unlike 1991, was a poor year for watermelon sellers. Unfortunately, the parties did not document which of them was to bear the risk of loss due to poor market conditions, or even due to substandard watermelons in terms of size or quality. Although the loading was performed by persons hired by Petitioner, Jim Rash, who died in December, 1992, supervised the loading of the melons at Petitioner's farm. He could note size discrepancies relatively easily. Although Respondent's representative testified that his late brother accepted the melons under protest, this testimony is not credited. Without Petitioner's consent, Mr. Rash evidently decided to market the melons as a premium, relatively small variety known as Sangrias, which they are not. However, Petitioner admitted that he should not be paid for watermelons that are of substandard quality. He did so when he admitted that Respondent's claim on spoiled or overripe watermelons would be a different matter if he had had a USDA inspector certify that the melons were bad. Although Mr. Rash took some field samples, he could not have as readily determined the condition of the watermelons as he could have determined their size. Petitioner has proved that Respondent was liable for payment of all melons loaded on the trailers except for those that were of deficient quality. In this case, between June 22 and 28, 1992, Petitioner sold nine loads to Respondent under the above-described terms. The total due Petitioner was $18,802.20, of which Respondent paid all but $5175.80. The only load that was rejected due to the watermelons' condition, rather than size, was the one in which Petitioner was underpaid by $2240.80. The purchaser in Chicago rejected these watermelons on June 26, 1992--two days after Petitioner sold them--because they were overripe and bruised.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order determining that Respondent owes Petitioner the sum of $2935. ENTERED on March 30, 1993, in Tallahassee, Florida. ROBERT E. MEALE 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 30th day of March, 1993. COPIES FURNISHED: Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800 Sonny Chesnut, pro se Route 1, Box 658 Bonifay, FL 32421 Earl M. Rash Post Office Box 1180 Dundee, FL 33838 Legal Department Fidelity & Deposit of Maryland Post Office Box 1227 Baltimore, MD 21203
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 Has Respondent VBJ Packing, Inc. (Respondent) paid Petitioner, Chastain- Bishop Farms (Petitioner) in full for watermelons represented by Respondent's load numbers 3002 and 3004 purchased from Petitioner during the 1995 watermelon season?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: 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. Watermelons come within the definition of "agricultural products" as defined in Section 604.15(3), Florida Statutes. At all times pertinent to this proceeding, Respondent was licensed as a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes. Respondent was issued license number 8887 by the Department which is supported by Bond Number 137743741 in the amount of $75,000 written by Respondent Continental Casualty Company (Continental), as surety, with an inception date of January 1, 1995, and an expiration date of December 31, 1995. The Complaint was timely filed by Petitioner in accordance with Section 604.21(1), Florida Statutes. Sometime during the week prior to Monday, May 8, 1995, Petitioner and Respondent entered into a verbal agreement which contained the following terms: (a) Petitioner would sell Respondent a semi-trailer load of medium size melons of good quality to be harvested and loaded by Petitioner onto a semi-trailer furnished by Respondent; (b) Respondent would have the right and opportunity to inspect the melons before or during loading; (c) Respondent would pay Petitioner fifteen cents ($0.15) per pound for the melons loaded onto the trailer; (d) upon delivery at Petitioner's farm, the melons became Respondent's property and Petitioner had no further obligation to Respondent concerning the melons; and (e) settlement was to be made by Respondent within a reasonable time. Subsequent to the above agreement, Petitioner sold and Respondent bought, a second semi-trailer load of melons to be delivered under the same terms and conditions as agreed in the above verbal agreement. On Friday, May 5, 1995, Respondent's agent, Robert Allen and T. J. Chastain, a partner in Chastain-Bishop Farms, had a disagreement concerning Eddie Idlette, Respondent's inspector, being on the Petitioner's farm. Because of an incident in the past involving Idlette and Petitioner, Chastain did not want Idlette on Petitioner's farm and made this known to Allen. As result of this disagreement, Idlette left the Petitioner's farm and was not present on Monday or Tuesday, May 8 & 9, 1995, to inspect the two loads of melons. Allen testified that Chastain also excluded him from Petitioner's farm at this time, and that Chastain told him that neither he nor Idlette needed to be present during the loading of the melons because Chastain "would stand behind the loads". However, the more credible evidence shows that Chastain did not prevent Allen from inspecting the melons on Monday or Tuesday, May 8 & 9, 1995, or tell Allen that he "would stand behind the loads". Furthermore, there is credible evidence to show that Allen was present at Petitioner's farm on Monday and Tuesday, May 8 & 9, 1995, and he either inspected, or had the opportunity to inspect, the two loads of melons, notwithstanding Allen's testimony or Respondent's exhibit 6 to the contrary. Petitioner did not advise Respondent, at any time pertinent to the sale of the melons, that Petitioner would give Respondent "full market protection" on the melons. Furthermore, Petitioner did not agree, at any time pertinent to the sale of the melons, for Respondent to handle the melons "on account" for Petitioner. The more credible evidence supports Petitioner's contention that the melons were purchased by Respondent with title to the melons passing to Respondent upon delivery at Petitioner's farm, subject to inspection or the opportunity to inspect before loading and delivery. On Monday, May 8, 1995, Petitioner loaded Respondent's first semi- trailer with a State of Georgia tag number CX9379, with 2,280 medium size Sangria melons of good quality weighing 46,800 pounds and identified as Respondent's load number 3002. Respondent accepted load 3002 for shipment to its customer. Using the agreed upon price of fifteen cents ($0.15) per pound times 46,800 pounds, the Respondent owed Petitioner $7,020.00 for load number 3002. On Tuesday, May 9, 1995, Petitioner loaded Respondent's second semi- trailer with a State of New Jersey tag number TAB4020, with 2,331 medium size Sangria melons of good quality weighing 46,620 pounds and identified as Respondent's load number 3004. Respondent accepted load 3004 for shipment to its customer. Using the agreed upon price of fifteen cents ($0.15) per pound times 46,620 pounds, the Respondent owed Petitioner $6,9993.00 for load number 3004. The combined total amount owed to Petitioner by Respondent for load numbers 3002 and 3004 was $14,013.00. Respondent shipped load 3002 to E. W. Kean Co, Inc. (Kean). Upon receiving load 3002, Kean allegedly found problems with the melons. Respondent allowed Kean to handled the melons on account for Respondent. Kean sold the melons for $6,804.05 or 14.5 cents per pound. After Kean's deduction for handling, Kean paid Respondent $6,112.05 or 13.02 cents per pound. In accounting to Petitioner, Respondent made further deductions for handling and freight, and offered Petitioner $3,641.24 or 7.8 cents per pound for the melons on load 3002. Respondent shipped load 3004 to Mada Fruit Sales (Mada). Upon receiving load 3004, Mada allegedly found problems with the melons. By letter dated June 8, 1995 (Respondent's exhibit 4), Mada grudgingly agreed to pay the freight plus 10 cents per pound for the melons. Mada paid Respondent $4,662.00 for load 3004, and after Respondent deducted its commission of $466.20, offered Petitioner $4,195.80 or nine cents per pound for the melons on load 3004. By check number 18922 dated May 28, 1995, Respondent paid Petitioner $7,760.08. Respondent contends that this amount was offered to Kye Bishop in full settlement for loads 3002 and 3004, and that after Bishop consulted with Chastain, Bishop on behalf of Petitioner, accepted this amount in full settlement for loads 3002 and 3004. Bishop contends that he turned down the $7,760.08 as settlement in full but took the $7,760.08 as partial payment and proceeded to file a complaint with the Department against Respondent's bond for the difference. There is nothing written on the check to indicate that by accepting and cashing the check Petitioner acknowledged that it was payment in full for load numbers 3002 and 3004. The more credible evidence shows that Bishop did not accept the check in the amount of $7,760.08 as payment in full for loads 3002 and 3004 but only as partial payment, notwithstanding the testimony of Allen to the contrary. There was an assessment charge of $62.72 which Petitioner agrees that it owes and should be deducted from any monies owed to Petitioner by Respondent. Initially, Respondent owed Petitioner $14,013.00. However, substracting the partial payment of $7,760.08 and the assessment of $62.72 from the $14,013.00 leaves a balance owed Petitioner by Respondent of $6,190.20
Recommendation Based 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 granting the Petitioner relief by ordering Respondent VBJ Packing, Inc. to pay Petitioner the sum of $6,190.20. RECOMMENDED this 23rd day of May, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, 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 23rd day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4226A The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. 1. Proposed findings of fact 1(a) through 1(i) are adopted in substance as modified in Findings of Fact 1 through 16. Respondent VBJ Packing, Inc's Proposed Findings of Fact. Proposed finding of fact 1 is covered in the Conclusion of Law. Proposed finding of fact 2 is adopted in substance as modified in Findings of Fact 1 through 16. Proposed finding of fact 3, 6, 7 and 8 10, are not supported by evidence in the record. As to proposed finding of fact 4, Petitioner and Respondent VBJ Packing, Inc. agreed that Petitioner would sell and Respondent would pay $0.15 per pound for medium size melons. Otherwise proposed finding of fact is not supported by evidence in the record. See Findings of Fact 4, 7 and 8. As to proposed finding of fact 5, Respondent sold the loads. Otherwise proposed finding of fact 5 is not supported by evidence in the record. Respondent Continental elected not to file any proposed findings of fact. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Lakeland, Florida 32399-0800 David K. Oaks, Esquire David Oaks, P.A. 252 W. Marion Avenue Punta Gorda, Florida 33950 Mark A. Sessums, Esquire Frost, O'Toole & Saunders, P.A. Post Office Box 2188 Bartow, Florida 33831-2188
The Issue The basic issue in this case is whether the Respondent Lawrence J. Lapide, Inc., is indebted to the Petitioner Raiford Dunn for agricultural products purchased by the Respondent from the Petitioner. BACKGROUND AND INTRODUCTION By complaint filed with the Bureau of License and Bond, Florida Department of Agriculture and Consumer Services, on October 7, 1986, and submitted to the Division of Administrative Hearings on November 21, 1986, for hearing, the Petitioner seeks payment of a balance due on watermelons sold and delivered to Lawrence J. Lapide, Inc., on June 17, 18, and 19, 1986. At the hearing the Petitioner and the representative for the Respondent Lapide both testified and both presented the testimony of other witnesses. The Petitioner and the Respondent Lapide also both offered exhibits which were received in evidence. Following the hearing, none of the parties ordered a transcript of the proceedings. Further, none of the parties have filed any post- hearing proposed findings of fact or conclusions of law as allowed by Section 120.57(1)(b)4, Florida Statutes.
Findings Of Fact Based on the parties stipulations, on the testimony at the hearing, and on the exhibits received in evidence I make the following findings of fact. l. The Respondent Lawrence J. Lapide, Inc., is a New York corporation. It is a licensed dealer in agricultural products, having been issued license number 1274. For the time period in question, Lawrence J. Lapide, Inc., had a bond posted through Peerless Insurance Company in the amount of $50,000.00. The bond number was RG-30-44. The Petitioner is a producer of agricultural products, specifically watermelons. The Petitioner has been raising watermelons for approximately 25 years. The Petitioner knows Mr. Lawrence J. Lapide and has had business dealings with Lawrence J. Lapide, Inc., on several occasions during the past 4 or 5 years. During 1986 the Petitioner sold three loads of watermelons to Lawrence J. Lapide, Inc., prior to the four loads which are the subject of this case. (The parties do not have any disputes about the three earlier loads.) During June of 1986, Mr. Lawrence J. Lapide met with the Petitioner to discuss the purchase of watermelons. Mr. Lapide, acting on behalf of Lawrence J. Lapide, Inc., agreed to buy four loads of watermelons. Mr. Lapide purchased 3 loads of small watermelons (referred to as "dinks") at 3 cents per pound and l load of medium watermelons at 5 cents per pound. When the watermelons were loaded and weighed, the totals were as follows: Pig # 676086 43,290 pounds x 3 cents $1,298.70 Pig # 677969 47,980 pounds x 3 cents $1,439.40 Pig # 676036 43,910 pounds x 3 cents $1,317.30 Pig # 677047 45,640 pounds x 5 cents $2,282.00 Thus, the total agreed price for the four loads of watermelons was $6,337.40. When the Petitioner and Mr. Lapide agreed to the sale of the four loads of watermelons, the terms of the sale included an understanding that the transaction was F.O.B. at Sumterville, Florida. The agreement between the parties included an understanding that Mr. Lapide would provide the trailers to haul the watermelons and Mr. Lapide would pay all transportation charges for the watermelons. Pursuant to the agreement of the parties, payment for the watermelons was due "when they moved over the scale," i.e., as soon as the trucks were loaded and weighed. Finally, the evidence shows that the agreement between the parties was to the effect that title and risk of loss to the watermelons passed to the Respondent Lapide on shipment, with all remedies and rights for the Petitioner's breach reserved to the Respondent Lapide. The watermelons in question were loaded on June 17, 18, and 19, 1986, on trailers provided by Mr. Lapide. Pursuant to Mr. Lapide's request, as soon as each truck was loaded, the Petitioner called the transportation company to advise them that the melons were loaded and ready to be shipped. When the watermelons were loaded, they were in good marketable condition and if anthractnose rot was present on the watermelons, it was not visible at the time of loading. During the week of June 16, 1986, the Petitioner loaded watermelons for Mr. James Hill at the same time he was loading watermelons for the Respondent Lapide. The watermelons loaded for Mr. Hill came from the same fields as the watermelons loaded for the Respondent Lapide. Mr. Hill did not have any problems with the loads of watermelons he bought from the Petitioner during the week of June 16, 1986. Two of the loads of watermelons received by the Respondent Lapide were not inspected when received in New York. Those two loads contained saleable watermelons although an unspecified percentage of the watermelons in the two uninspected loads were unsaleable. The Respondent Lapide sold watermelons from the two uninspected loads. Two of the loads of watermelons received by the Respondent Lapide were inspected after they were received in New York. The inspections showed that one load contained anthractnose rot in various stages in 44 percent of the watermelons and that the other load contained anthractnose rot in various stages in 79 percent of the watermelons. The Respondent Lapide dumped the last two loads of watermelons. The Respondent Lapide has previously paid the Petitioner $1,500.00 of the amount due for the four loads of watermelons in question.
Recommendation Based upon all of the foregoing, it is recommended that the Respondent Lawrence J. Lapide, Inc., be ordered to pay to the Petitioner the sum of $4,837.40. It is further recommended that if the Respondent Lawrence J. Lapide, Inc., fails to timely pay the Petitioner as ordered, :the Respondent Peerless Insurance Company then be ordered to pay the Department as required by Section 604.21, Florida Statutes, and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes. DONE AND ENTERED this 2nd day of June, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1987. COPIES FURNISHED: William C. Harris, Esquire Florida Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Lawrence J. Lapide, Inc. 3 Willshire Court Freeport, New York 11236 Peerless Insurance Company 62 Maple Avenue Keene, New Hampshire 03431 Ted Helms, Chief Bureau of License and Bond Lab Complex Tallahassee, Florida 32399-1650 Lawrence J. Marchbanks, Esquire MARCHBANKS & FEAN 4700 N.W. 2nd Avenue, Suite 101 Boca Raton, Florida 33432 Hon. Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 =================================================================
The Issue The issue in the proceeding is what amount, if any, is owed by M. G. Ford Produce to Spessard Putnal for two and a half loads of watermelons. A determination of this issue requires a determination of the character of the transaction regarding the watermelons: Was it a "sale", or was it an agreement to "handle" the melons as a broker?
Findings Of Fact Spessard Putnal grows watermelons in Lafayette County and operates out of Mayo, Florida. M. G. Ford owns M. G. Ford Produce Company, a licensed and bonded brokerage business and the successor to his father's business, Malvin Ford Produce. Both S. J. Ridgdill and Rodney Ridgdill own a fraction of the business. The principal office is in LaBelle, Florida; however, other offices are located temporarily elsewhere, including Mayo, during the various growing seasons. The watermelons which are the subject of this dispute are described as follows: Load number 218 This was 44,340 pounds of Charleston Grey watermelons: 28,260 pounds of melons grown by Cory Buchanan from Mayo, and 16,080 pounds of melons grown by Spessard Putnal. The truck left Lafayette County on June 22, 1986, and arrived at A & P Stores in Edison, New Jersey, on June 24, 1986. The load was inspected by an A & P inspector and was rejected for excessive rind rot. The load was then consigned to Eckert Produce, Inc. in Philadelphia on June 25, 1986. Eckert sold the melons for $.75 and $1.00 each, and after deducting its unloading, handling and selling charges ($534.88), paid M. G. Ford Produce $1,057.62. M. G. Ford's accounting to Spessard Putnal and Cory Buchanan which, after deducting freight expense of $1,640.58 and $75.00 handling charge, indicated a net loss of $657.96. The loss was apportioned between the two growers according to their share of the load. Load number 227 This was a full load of Spessard Putnal's Charleston Grey melons; 46,070 pounds. It left by truck on June 30, 1986, and was inspected by a U.S. Department of Agriculture inspector in New York on July 3, 1986. Six per cent damage by "transit rubs" was found, and 7 percent decay. The load arrived at Wakefern Foods in Linden, New Jersey, on July 3, 1986, where it was rejected. The load was then consigned to Eckert Produce Company in Philadelphia on July 7, 1986. A few melons sold for $1.25 each; most sold for $1.00 each. After deducting its various charges ($587.74), Eckert paid M. G. Ford Produce $1,098.51 for the load. M. G. Ford's accounting to Spessard Putnal showed deductions of $1,773.69 for freight and $75.00 for handling, for a net loss of $750.18. Load number 228 This was 43,890 pounds of Spessard Putnal's Charleston Grey melons. The truck left on July 2, 1986, and the load was inspected in New Jersey for a prospective distributor, Anthony Gangemi, Inc. The U.S. Department of Agriculture inspection form dated July 5, 1986, is stamped "Rejected" with notations of internal rind spots, bruising, bacterial soft rot, and "overripe". The load was consigned to Eckert Produce on July 7, 1986. The melons that were not discarded were sold for $1.00 each. After deducting its charges ($545.55), Eckert paid M. G. Ford Produce $1,143.45 for the load. In turn, M. G. Ford deducted freight of $1,645.87 and handling charges of $75.00, and its accounting to Spessard Putnal showed a net loss of $577.42. 1/ The end of the watermelon season in Lafayette County in 1986 was around the Fourth of July. Because of heavy rains and because of the end of the season, M. G. Ford Produce had considerable trouble with rind rot on Charleston Greys by the time they got to the northern markets. John Hull works for M. G. Ford Produce. He inspects the melons in the field and supervises the loading by contract crews. He thought Spessard Putnal's watermelons looked good and would "ride" (go north and pass inspection and be accepted). He told Putnal that he (Putnal) should be able to get at least $.03 per pound. When the two men called M. G. Ford, who was in North Carolina, he told them that the only way he would take the loads was on a consignment basis and that he would pay $.03 a pound or better if they passed inspections. The melons were loaded and their fate is described in Paragraph 3, above. Spessard Putnal claims that the agreement was that M.D. Ford bought his melons for $.03 a pound. He says that he never sells his melons on consignment but is paid "when they cross the scale". He said that the reason he wasn't paid immediately in this case was that M. G. Ford was in North Carolina. He admits that on other occasions he was paid by M. G. Ford according to the prices the melons brought "up the road". Sonya Ridgdill is M. G. Ford's mother and Malvin's widow. She served as bookkeeper, office manager and secretary for Malvin Ford Produce for 15 years and now works with her son's company. She was in the Mayo office when the arrangements were made regarding Mr. Putnal's melons and she could have paid him immediately if that had been the agreement. M. G. Ford Produce both "buys" produce and "handles" (consignment) produce for growers. When the produce is bought, the grower is paid immediately. The company has "handled" melons for both Spessard Putnal and Cory Buchanan. Cory Buchanan did not contest the accounting on his share of load number 218. A negative inspection will not necessarily result in a load being "kicked" (rejected). The market supply and demand also governs whether the load will be sold. As is common in such transactions, the arrangement between Spessard Putnal and M. G. Ford Produce is not reflected in writing. Nor is there evidence of written or verbal consent from Spessard Putnal to the consignment by M. G. Ford to Eckert Produce.
Recommendation Based upon the foregoing, it is recommended that a Final Order be entered finding that no funds are owed by Respondents to Petitioner for the watermelons in question and dismissing Petitioner's complaint. DONE AND RECOMMENDED this 25th day of February, 1987, at Tallahassee, Florida. MARY CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1987.
