Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; William H. Holly, Judge.
Before EVANS, TREANOR, and KERNER, Circuit Judges.
Pursuant to Sections 2(2) and 5(a, b) of the Perishable Agricultural Commodities Act, 46 Stat. 532, 534, Title 7 U.S.C.A. §§ 499b(2), 499e(a) and (b), Barbere Farris and Fred Farris, purchasers, made complaint to the Secretary of Agriculture against the Meyer Schuman Company, seller, charging that on July 9, 1938 the seller sold to the purchasers a carload of cantaloupes, U.S. No. 1 grade, then in transit in interstate commerce; that the purchasers had been advised by the seller that the cantaloupes were in good condition when shipped; that the merchandise did not arrive in Toledo, Ohio, the point of destination, in a suitable condition to meet the requirements of U.S. No. 1 grade and that by reason thereof the purchasers suffered a loss.
The seller answered the complaint admitting the sale, denied the cantaloupes were sold on a grade and alleged it delivered the kind, grade and quality provided for under its contract of sale.
After oral hearing had been waived an Acting Secretary of Agriculture made findings of fact to the effect that the purchasers contracted in interstate commerce to purchase, and the seller to sell, a carload of 324 crates of cantaloupes at the agreed price of $1,032.90 less freight and other charges, or for the net sum of $573.76 f.o.b. Chicago, Illinois; that the cantaloupes were shipped from Alhambra, Arizona, on July 5, 1938 and were on July 9, 1938 diverted in transit to the purchasers at Toledo, Ohio, arriving there on the morning of July 11, 1938. An inspection within a few hours after their arrival disclosed a high percentage of over-ripe, decayed and molded melons.
The purchasers segregated 47 crates of sound cantaloupes and sold them at an average price of $3.70 per crate and sold the 259 damaged crates for $385.50.
Based on these findings the Secretary of Agriculture determined and concluded that the seller failed to deliver sould cantaloupes for which it had received payment, that the purchasers had been damaged, and issued his order of reparation awarding damages in favor of the purchasers and against the Meyer Schuman Company for $572.80 and interest.
The Meyer Schuman Company appealed to the District Court. A jury having been waived, the cause was tried by the court de novo. The purchasers offered in evidence the complaint, answer of the seller, findings, conclusions and the order of the Secretary of Agriculture, and in addition there was testimony to the effect that the railroad car in which the cantaloupes were shipped was properly refrigerated and in good mechanical condition, and that perishable commodities, where the car is properly refrigerated and is in good mechanical condition, "will keep in good shape and condition for nine or ten days."
There was no evidence that the cantaloupes were in good condition when shipped.
Meyer Schuman testified that the cantaloupes were "vine-ripened" which means "a more matured grade of cantaloupe" and that "a cantaloupe is about the highest perishable commodity there is."
Upon the record thus appearing the trial court concurred in the findings of the Secretary of Agriculture and specifically found that 259 crates of the cantaloupes were not of merchantable quality or in suitable shipping condition, either at the time they were purchased or at the time they were shipped from Arizona, and rendered judgment for $572.80 and interest in favor of the purchasers and against the seller. To reverse the judgment, the seller appeals.
The first question raised by the appellant is that the evidence fails to substantiate the allegations of the complaint. The record discloses that after appellees rested their case, counsel for appellant moved for a finding on the ground of variance, claiming that appellees failed to prove appellant sold appellees U.S. No. 1 cantaloupes. In passing upon the motion the court held the complaint alleged and the proofs showed that appellant sold to appellees cantaloupes with an implied warranty that they were merchantable.
The purpose of the rule which requires that the allegations and the proofs must correspond is that the opposite party may be fairly apprised of the specific nature of the questions involved in the issue, and it is elementary that a variance between allegations and proofs, in order to be fatal, must be substantial and material. In our case a fair reading of the complaint clearly discloses that the appellant was apprised of the factual basis of appellees' claim. It was well aware of the fact that the gist of appellees' claim was that appellant had sold to appellees cantaloupes warranted to be in good condition, when in fact they were over-ripe and decayed. Under ...