The opinion of the court was delivered by: FOLLMER
This is an appeal by Harrisburg Daily Market, Inc., (hereinafter referred to as Market), from a Reparation Order by the Secretary of Agriculture made under the Perishable Agricultural Commodities Act, 7 U.S.C.A. 499a et seq. (hereinafter referred to as P.A.C.A.). The appeal is brought under Section 499g(c) of the same Act from a finding in favor of complainant, C. E. Jackson Company (hereinafter referred to as Jackson). Since this is a trial de novo, the Court now makes the following,
1. Market is a Pennsylvania corporation, a licensed produce broker, with its principal place of business located in Harrisburg, Pennsylvania.
2. Jackson is an individual, Clifton E. Jackson doing business as C. E. Jackson Company, whose principal place of business is located in Chambersburg, Pennsylvania.
3. On or about September 15, 1958, in the course of interstate commerce, Jackson, by oral contract, sold to Market 432 crates of Elberta peaches at $ 1.10 per crate, f.o.b. the Cump Orchards in Franklin County, Pennsylvania, and 25 3/4 bushel baskets of U.S. No. 1, 2 inch size, Elberta peaches, at $ 1.85 per basket f.o.b. Hafer Cold Storage Plant, Chambersburg, Pennsylvania, for a total invoice price of $ 521.45.
4. The peaches sold by Jackson to Market, as aforesaid, were to be shipped to a customer of Market at Syracuse, New York, a fact which was made known to Jackson at the time of sale by Market's duly authorized agent, Isaac B. Snyder, who negotiated this sale for Market.
5. Jackson and Market's said agent went to the Cump orchard on the afternoon of the sale, and Mr. Snyder inspected the peaches on the trees and designated the portion of the orchard from which he wanted the peaches picked for shipment to Market's customer, without specifying that such peaches should be of any particular size, grade, quality or degree of firmness. Later the same day Market's said agent, Mr. Snyder, went to the cold storage plant in Chambersburg and inspected the packed peaches which he wanted to buy and found them to be satisfactory.
6. The following day, September 16, 1958, Market sent a truck and some empty crates to the Cump orchards in Franklin County, Pensylvania, and the 432 crates of Elberta peaches sold to Market were loaded on this truck. These peaches were picked that day from that portion of the Cump orchards which Mr. Snyder had designated as the place from which they should be picked and were of the same size, grade, quality and degree of firmness as were the peaches seen by Mr. Snyder on the preceding day and approved by him on behalf of Market. There were also loaded on this truck the same day the 25 3/4 bushel baskets of Elberta peaches from the cold storage plant in Chambersburg, which were taken from the lot inspected by Mr. Snyder the previous day and approved by him as being U.S. No. 1, 2 inch peaches.
7. Market's customer at Syracuse, New York, Weaver Fruit & Vegetable Co., forwarded to Market under date of November 5, 1958, a statement showing that 132 crates of the peaches in question had been lost in repacking and a check to Market in the amount of $ 67.50 accompanied this statement. Market then forwarded a check to Jackson in the amount of $ 183.50 which represented the proceeds received by Market from Weaver Fruit & Vegetable Co., $ 367.50, less Market's cartage expense and telephone call charges amounting to $ 184. Jackson refused to accept this remittance and Market subsequently paid Jackson $ 38.55 without prejudice to the rights of either party. Accordingly, the difference between the contract price of $ 521.45 and the amount received by Jackson, $ 38.55, is $ 482.90.
8. There remains due and owing to Jackson from Market the sum of $ 482.90.
Market contends that the transaction did not involve a shipment in interstate commerce and that the agreement between the parties called for peaches which were graded U.S. No. 1, good, large, hard fruit.
I find no merit to either of these contentions. The evidence is very clear that both parties understood and agreed that the peaches were for shipment to Syracuse, New York, and that the destination specified in the contract was Syracuse, New York. I also conclude, on the basis of the evidence, that the agreement between the parties did not call for U.S. No. 1, good, large, hard fruit, as Market claims. Market's agent was shown the orchard at which the peaches were available, and he specifically designated the section of the orchard from which the peaches were to be picked. The evidence shows that the peaches were picked from the section so selected and were ...