Swygert, Chief Judge, Fairchild, Circuit Judge, and Gordon, District Judge.*fn1
FAIRCHILD, Circuit Judge.
Deardorff-Jackson Company is a wholesale dealer in potatoes and other perishable commodities in interstate commerce, located at Oxnard, California. National Produce Distributors, Inc. is also a wholesale dealer with its main office at times here material at Chicago, Illinois. The two dealers made a contract dated February 26, 1965 for the sale of potatoes by Deardorff to National with delivery during June, 1965. Deardorff shipped a quantity of potatoes which it claims fulfilled the contract. National did not pay in full for those and other shipments, but claims that Deardorff was obligated to deliver more potatoes and that the profit National would have realized on potatoes not delivered more than offset the amount unpaid.
The Perishable Agricultural Commodities Act, 1930*fn2 authorizes a proceeding before the Secretary of Agriculture to obtain a reparation order where a dealer in such commodities fails to make payment or fails to deliver in accordance with the terms of a contract. § 499g(c) provides for an appeal to a district court with a trial de novo "except that the findings of fact and order or orders of the Secretary shall be prima-facie evidence of the facts therein stated."
Deardorff sought a reparation order for non-payment and National counter-claimed for failure to deliver. A hearing was held in January, 1967. A representative of the Secretary, after findings and conclusions favorable to National, ordered Deardorff to pay $5,925, with interest from July 1, 1965. Deardorff appealed, and a hearing was held in October, 1969. The district court, reaching a different conclusion, ordered National to pay Deardorff $39,075, with interest. National appealed.
For the greater part, the facts are not in dispute.
Duane Smith, acting for Deardorff, negotiated by telephone in early 1965 with Dan Rietman, president of National. The conversations and an exchange of correspondence February 12 and 17, led to the contract dated February 26, modified, after another telephone conversation, by a further exchange of correspondence March 3 and 10.
The February 26 document, prepared by Smith, read as follows:
"Pursuant to our several conversations via telephone, I will enumerate here below the conditions of the sale of 150 car of potatoes to be shipped during the 1965 Kern County Potato deal from Wasco, Calif.
"National Produce Distributors, Inc., hereafter known as the Buyer and Deardorff-Jackson Co., hereafter known as the Seller do hereby agree as follows:
"That Buyer shall buy and Seller shall sell 100 cars of Longwhite Potatoes containing 450 sacks each and grading US#1 Size "A", 2 inches minimum, unstripped and meeting maturity regulations if any exist, otherwise no worse than slightly to moderately skinned, at $2.75 F.O.B. shipping point, certificates to read clean.
"That Buyer shall buy and Seller shall sell 50 cars of Red Lasoda Potatoes containing 480 sacks, grading US#1, Size "A", 2 inches to 3 1/2 inches, mostly 2 1/4 inches to 3 1/4 inches, at $2.75 F.O.B. shipping point, certificates to read clean.
"That shipment of Longwhite Potatoes to be made from June 1st through June 30th, 1965 but not to exceed five (5) cars on any one day, Monday through Saturday, each week, except that should shipment not start on June 1st, Buyer has the right to make up shipments on the basis of two (2) cars per day.
"That shipment of Red Lasoda Potatoes to be made from June 5th through June 30th, 1965 but not to exceed three (3) cars per day, Monday through Saturday, each week, except that should shipments not start on June 5th, Buyer has the ...