Plaintiff now seeks reparation in the amount of the difference between the sale price of the grapes and the net sum realized on their resale.
Defendant's agent, Braddock, testified 'I told him (the broker) I would take the car at the ten dollar reduction provided the Federal Government would pass the car as U.S. #1.'
This statement does not agree with the wording of the telegram referred to above in which the Plaintiff was instructed by the broker to reduce the draft by $ 10 a ton. No condition was mentioned in that communication. Moreover, the condition testified to by Braddock was of no force or effect. The grapes were ordered as U.S. #1 at $ 135 a ton. If they graded that quality upon their arrival at their destination, Defendant would have been entitled to no reduction whatsoever. Defendant was powerless to accept the $ 10 a ton reduction on the condition the grapes were U.S. #1, since Defendant had already agreed to $ 135 a ton for such a commodity.
A judgment will be entered in favor of the Plaintiff for the amount of the difference between the sale price of the grapes and the net sum realized on their resale and costs, and a reasonable attorney's fee will be taxed by the Clerk against the Defendant, Beilman Produce Company, Inc.
Findings of Fact, Conclusions of Law, and directions for the entry of judgment and taxing of costs are filed herewith.
Findings of Fact.
1. During the period covered by the Complaint, Defendant, Beilman Produce Company, Inc., was licensed under the Perishable Agricultural Commodities Act.
2. On September 21, 1943, Plaintiff quoted to the Shampanier Brokerage Company at Scranton a price of $ 135 a ton, f.o.b. Lodi, California, plus a precooling charge of $ 20 making the total price $ 2,233.66 for a carload of grapes.
3. Defendant, through the brokerage company mentioned above, purchased the shipment at the quoted price and a confirmation of sale issued by the broker described the commodity as 'One car load California U.S. #1 Juice Zinfandel Grapes 1250 lidded lugs Belcanto brand $ 135.00 ton FOB Calif, plus $ 20.00 precooling.'
4. The car arrived at Hazleton September 27, 1943; whereupon, the Defendant reported that the grapes were defective and that Defendant would not accept the shipment unless an allowance of $ 10 a ton was made in the price.
5. Plaintiff wired the broker on September 28, 1943, allowing a reduction of $ 10 a ton in the price, and, on the same day, the broker, acting for the Defendant stated that the reduction was satisfactory.
6. On September 29, 1943, Defendant wired Plaintiff that it would refuse the shipment at any price, the grapes failing to grade U.S. No. 1.
7. Plaintiff then forwarded the car load to Philadelphia where the grapes were sold for a gross price of $ 1,812.50. After payment of freight, icing, and other charges in the amount of $ 738.02, Plaintiff realized net proceeds of $ 1,074.48.
8. Plaintiff brought action under the Perishable Agricultural Commodities Act, and was awarded in that action a reparation order in the sum of $ 970.21, with interest at 5% from September 29, 1943.
9. Within thirty days after the final order of the War Food Administrator, Department of Agriculture, an appeal from the order was filed in this Court.
Conclusions of Law.
1. A contract was made upon the acceptance by the broker of the reduced price of $ 125 a ton for the grapes. The acceptance was not conditioned upon the grapes being classified U.S. #1.
2. Defendant was bound by the terms of said contract.
3. Plaintiff is entitled to the amount of the difference between the sale price of the grapes and the net sum realized on their resale.
4. This case is properly before the Court, and this Court has jurisdiction under the Perishable Agricultural Commodities Act, 7 U.S.C.A. § 499g(c).
5. Plaintiff is entitled to a reasonable attorney's fee under said statute.
The Clerk of this Court is directed to enter judgment in favor of Western Fruit Growers, Inc., and against Beilman Produce Company, Inc., in the sum of $ 970.21, with interest at 5% from September 29, 1943, to this date, and the Clerk is further directed to tax costs and an attorney's fee of One Hundred and Fifty Dollars($ 150) against the Defendant, Beilman Produce Company, Inc., the attorney's fee to be paid to Welles, Mackie, Mumford and Law, counsel of record for the Plaintiff, Western Fruit Growers, Inc.
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