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July 28, 1954


The opinion of the court was delivered by: CLARY

This is an appeal by Yonk Rubin & Son (hereinafter called 'Rubin') from a reparation order by the Secretary of Agriculture made under the Perishable Agricultural Commodities Act, 7 U.S.C.A. § 499g(a), (hereinafter called 'P.A.C.A.'). The appeal is brought under Section 499 g(c) of the same Act from a finding in favor of complainant Sydney R. Shermann, trading as W.J. Westcott Company, (hereinafter called 'Shermann'). Since this is a trial de novo, the Court now makes the following

 1. Petitioner-respondent is an individual, York Rubin, doing business as York Rubin & Son, a licensed produce broker, with his principal place of business located in Philadelphia, Pennsylvania. At all times material hereto Rubin was licensed under P.A.C.A.

 2. Plaintiff-appellee is an individual, Sydney R. Shermann, trading as W. J. Westcott Company, a dealer in produce, whose principal place of business is likewise located in Philadelphia, Pennsylvania.

 3. L.A. Schiano, one of the abovenamed defendant-respondents, is an individual and a resident of Syracuse, New York. While named as a party to the action both before the Secretary of Agriculture and in this Court, he appeared in neither place and is merely a nominal party to the action.

 4. At about 1 a.m. on the morning of June 6, 1949, plaintiff Shermann, a dealer in produce, was present at his place of business located at 100 Dock Street, in the City and County of Philadelphia. At that time the above-named Schiano appeared and asked for a quotation on a wholesale lot of potatoes which Shermann had for sale. The potatoes nvolved were 'North Carolina' potatoes. Shermann offered to Schiano, subject to a satisfactory credit check, a truckload of said potatoes consisting of 325 one hundred pound bags at $ 3.35 per bag for a total amount of $ 1,088.75, F.O.B. Shermann's place of business. Schiano agreed at that time to buy said potatoes but Shermann did not agree to sell them to him.

 5. Shermann, knowing nothing of Schiano's credit rating, before proceeding further, consulted a list of names of approved credit risks which had been compiled by a credit bureau of which Shermann was a member. Schiano's name was not found on said list and Shermann thereupon informed Schiano that he would not extend credit to him. Schiano then requested Shermann to telephone Rubin and inquire about his, Schiano's, credit reliability. Schiano previously had had commodity transactions with Rubin and in addition had done trucking work for Rubin. Shermann then at that early morning hour telephoned Rubin at the latter's home in suburban Philadelphia and related to him the status of the proposed transaction, whereupon Rubin instructed Shermann to do nothing until he, Rubin, personally appeared at Shermann's place of business.

 6. The established trade custom, fully understood by both Shermann and Rubin, was that, through the credit bureau aforesaid, settlement for any credit transactions occurring on June 6, 1949 would be consummated on June 15, 1949.

 7. One hour after the aforesaid telephone call by Shermann to Rubin, at about 2 a.m., Rubin and his son appeared at Shermann's place of business and a discussion ensued between Rubin, Shermann and Schiano. Rubin inquired to Schiano as to the character of the potatoes and Schiano informed Rubin that they were 'Okay'. Schiano had previously inspected samples of the potatoes on the floor of Shermann's store sand Rubin also inspected the said samples of potatoes and then told Schiano to purchase them.

 8. Shermann at that junction and in the presence of both Schiano and Rubin again refused to sell Schiano the potatoes on the customary credit terms.

 9. Rubin thereupon instructed Shermann to charge the potatoes to him stating that he would be the 'responsible party' and that he would pay the bill. He further directed Shermann on the basis of these statements to deliver the potatoes to Schiano. Shermann then wrote up the necessary slips to effect delivery of the potatoes and handed them to Rubin, who passed them to Schiano, and Schiano took delivery of the potatoes in the presence of Rubin and Shermann. He then took the potatoes to Syracuse, New York, where he disposed of them.

 11. On the same date, June 6, 1949, bills for the potatoes were sent by Shermann to both Rubin and Schiano ...

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