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G&T TERMINAL PACKAGING CO. v. JOE PHILLIPS

July 25, 1985

G&T TERMINAL PACKAGING CO., INC. Plaintiff-Appellant against JOE PHILLIPS, INC. Defendant-Appellee


The opinion of the court was delivered by: NEWMAN

OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW

BERNARD NEWMAN, Senior Judge of the United States Court of International Trade, sitting by designation:

Introduction

 This proceeding is an appeal pursuant to 7 U.S.C. § 499g(c) from an award of reparations to defendant Joe Phillips, Inc. by the United States Department of Agriculture (U.S.D.A.) in connection with seven railroad carloads of potatoes sold and shipped by defendant to plaintiff, G&T Terminal Packaging Co., Inc. *fn1" In accordance with the statute, this matter was tried to the court de novo; however the findings of fact and order of the Secretary are prima facie evidence of the facts therein stated.

 Two issues are presented: (1) Did the parties agree upon a reduction of the prices in the seven transactions in question; (2) Was there a breach of contract by defendant in any of the seven transactions; if so, did plaintiff establish its damages?

 The Facts

 Defendant corporation is a growers' representative and shipper of produce located in Fresno, California. Plaintiff corporation is a buyer and repacker of produce, mainly potatoes, located in The Bronx, New York. In June and July, 1980 defendant sold and shipped from California to plaintiff's place of business in New York the seven railroad carloads of potatoes in question. All of the contracts were negotiated by Larry Steinberg of Steinberg Bros. Co., a produce broker in Chicago, Illinois. A broker's memorandum confirming each of the transactions was sent by Mr. Steinberg to both parties, specifying that the potatoes were "USONE" and were sold "FOB SP". According to plaintiff's witness Robert M. Steinberg, brother and business partner of the late Larry Steinberg (who passed away in December, 1983), "FOB SP" designates that the potatoes were to be placed "free on board" the rail cars at the shipping point. *fn2"

 In conformance with the parties' contracts, defendant shipped the following seven rail cars of potatoes, with a total invoice price of $35,599.50:

 (1) June 19, 1980: UPFE 452139 invoiced as "900 100 # sks US lB LW potatoes" at $4.50 per cwt (hundred weight), plus a temperature recording device at $22.50, for a total invoice amount of $4,072.50.

 (2) June 30, 1980: SFRC 55454 invoiced as "900 100 # US 1A LW potatoes" at $8.50 per cwt, plus a temperature recording device at $22.50, for a total invoice amount of $7,672.50.

 (3) June 30, 1980: SPFE 451204 containing 900 cwt of potatoes invoiced as "840 100 # US 1 BEE LW potatoes" at $4.00 per cwt and "60 100 US # 1A LW potatoes" at $8.50 per cwt, plus a temperature recording device at $22.50, for a total invoice amount of $3,892.50.

 (4) July 2, 1980: SPFE 452793 invoiced as "900 100 # US 1 BEE LW potatoes" at $4.00 per cwt, plus a temperature recording device at $22.50, for a total invoice amount of $3,622.50.

 (5) July 3, 1980: SPFE 456453 invoiced as "900 100 # US 1A LW potatoes" at $8.50 per cwt, plus a temperature recording device at $22.50, for a total invoice amount of $7,672.50.

 (6) July 3, 1980: SPFE 459800 with contents invoiced as "900 100 # US 1 BEE LW potatoes" at $4.00 per cwt, plus a temperature recording device at $22.50, ...


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