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SCHUMAN CO. v. NELSON

July 28, 1954

SCHUMAN CO.
v.
NELSON et al.



The opinion of the court was delivered by: FOLLMER

This is an appeal, under the provisions of the Perishable Agricultural Commodities Act, 1930, 46 Stat. 531, 7 U.S.C.A. § 499a et seq., to set aside a reparation award order of the Secretary of Agriculture. The Act provides that the 'suit in the district court shall be a trial de novo and shall proceed in all respects like other civil suits for damages, except that the findings of fact and order or orders of the Secretary shall be prima-facie evidence of the facts therein stated.' 7 U.S.C.A. § 499g(c). The case was submitted to the Court on the basis of the record compiled below pursuant to Stipulation between counsel. No further evidence was produced.

The following Findings of Fact were made by the Secretary of Agriculture:

 
'1. Complainant, The Schuman Company, is a corporation whose post office address is 216 South Water Market, Chicago, Illinois.
 
'2. Respondent is a partnership composed of James E. Nelson, James W. Nelson, and Donald G. Nelson, doing business as J. E. Nelson & Sons, with its principal place of business at 1102 Eleventh Street, Altoona, Pennsylvania. At the time of the transaction involved herein, respondent was licensed under the act.
 
'3. On or about August 20, 1948, in the course of interstate commerce, the parties entered into an agreement for the sale by complainant to respondent of 312 crates of Gold Star Brand lettuce contained in car MDT 5743, at an agreed price of $ 2.10 per crate, plus $ 60 topice, plus retopicing, or for a total price of $ 715.20, f. o. b. acceptance final. The contract called for the shipment to be billed 'open' to respondent at Johnstown, Pennsylvania.
 
'4. On August 20, 1948, complainant ordered the shipment, then in transit, diverted to Johnstown, Pennsylvania, and to be billed to itself 'advise' respondent. On August 21, 1948, which was two days prior to arrival of the lettuce at destination, respondent rejected the shipment to complainant.
 
'5. On August 26, 1948, complainant diverted the shipment to the Allison Produce Company at New York, New York. Following inspection of the produce at New York City by the McCabe Inspection Service on August 31 and September 1, 1948, the carload of lettuce was abandoned to the carrier. Complainant has received no part of the purchase price.
 
'6. Net proceeds of $ 56.76 were realized by the carrier upon resale of the carload of lettuce. This amount is being held by the carrier.
 
'7. The formal complaint was filed October 20, 1948, which was within 9 months after the cause of action accrued.'

 The Secretary further found that 'It is undisputed that the terms were f. o. b. acceptance final.'

 Although finding the evidence conflicting, The Secretary concluded, (a) that the weight of the evidence supports respondent's testimony and other proof that the parties agreed upon a sale of the lettuce in car MDT 5743, to be billed 'open' to Johnstown, Pennsylvania; (b) that it followed that there existed a binding contract between the parties entered into on an f. o. b. acceptance final basis and requiring complainant to bill the shipment 'open'; (c) that 'since complainant is entitled to recover the full contract purchase price from respondent, it follows that respondent should receive the funds being held by the carrier', to wit., $ 56.76.

 The appeal is based on the following grounds:

 (a) Respondents' agreement to purchase the carload of lettuce from complainant was made subject to the condition that complainant would divert the car to respondents at Johnstown, Pennsylvania, on credit or 'open' billing, and the Department of Agriculture so found as a fact.


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