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HAMS EXPRESS, INC. v. JOSEPH LAND & CO.

October 7, 1980

HAMS EXPRESS, INC.
v.
JOSEPH LAND & CO., INC.



The opinion of the court was delivered by: GILES

MEMORANDUM AND ORDER

This action arose out of a series of five contracts for the carriage of perishable freight by plaintiff, Hams Express, Inc. (hereinafter "Hams") an interstate trucking company and defendant, Joseph Land and Company, Inc. (hereinafter "Land") a truck broker. In each case perishable goods were transported by Hams trucks from producers on the West Coast of the United States to wholesale markets on the East Coast.

 As to two of the loads, there is no dispute regarding timeliness or quality of delivered goods. As to the other three, however, Land asserts that it sustained direct losses resulting either from spoilage or market decline. Land attributes the market decline to late arrivals of produce.

 There is no dispute as to the per load invoice amounts due Hams or the calculation of brokerage commissions which were to be paid Land.

 The court already has found jurisdiction over plaintiff's claims under 28 U.S.C. §§ 1337 and 1332(a). Memorandum and Order, filed January 23, 1980.

 I. FINDINGS OF FACT

 Pursuant to Rule 52(a) Fed.R.Civ.P., the court makes the following findings of fact:

 1. Hams is a Pennsylvania corporation having its principal place of business in Pennsylvania.

 2. Land is a corporation organized in and existing under the laws of a state other than Pennsylvania and has its principal place of business in Florida.

 3. The amount in controversy, exclusive of interest and costs, is in excess of $ 10,000.

 4. Customarily, the contractual relationship between Hams and Land arises when either determines that Hams has an empty truck in a geographical area and field produce is desired to be shipped from that area to or beyond the return point of the empty truck. In such instances, by telephone, Ham contacts, or is contracted by, a truck broker, such as Land, who for a commission directs the empty truck to specific locations, where the produce is loaded for shipment to its market.

 5. As broker, Land is responsible to the produce owner or consignee for the condition and timely delivery of the produce.

 6. Hams is responsible for proper delivery of the goods to the destination point Land chooses. When Hams effects such delivery, it is entitled to the cost of carriage, i. e., freight.

 7. All of the transactions in this action were entered into by the parties by telephone.

 A. Load W-38

 8. Hams carried a load of produce identified as Load W-38 for Land commencing on June 12, 1978 for the agreed price, after deduction of brokerage, of $ 2,325.00. This load was accepted by the consignee without objection. No dispute exists as to the amount each party owes.

 B. Load W-47

 9. Hams also carried a load of produce identified as Load W-47 for Land, which was delivered on or about June 20, 1978, for the agreed price, after deduction of brokerage, of $ 2,484.00. This load also was accepted by the consignee without objection. There is ...


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