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MAYO v. LENT

Supreme Court of Florida, Division A
Apr 25, 1950
45 So. 2d 879 (Fla. 1950)

Opinion

April 25, 1950.

Appeal from the Circuit Court of Leon County, Hugh M. Taylor, J.

Wm. C. Bierce, Tampa, for Commissioner of Agriculture.

Ben C. Willis, Tallahassee, for Mrs. Herman Nystrom.

Garland W. Spencer, Sanford, for appellees.


The Commissioner of Agriculture received from the appellant-grower a complaint that appellees had entered into an agreement to purchase her oranges at $1.50 a box, had given her a check for $250 as a binder, and then had reneged, so that she was compelled to sell the fruit to some one else at one-third of that amount.

When the complaint reached the commissioner he served notice on the appellees to reply to a formal charge that they had "failed and refused truly and correctly to account" for the fruit.

Eventually a hearing was conducted by an officer of the Department of Agriculture, at which only the appellant-grower and the appellees' manager testified. From their testimony it developed that he had approached her with reference to buying the crop at $1.25 a box and she, after consulting her husband, insisted that she be paid $1.50. There was never a written contract, but according to her version "it was done on his word as a gentleman * * * with the full assurance that our valencia crop would be picked at the price of $1.50 per box * * *." The representative and his principals did nothing at all toward gathering the fruit, and it was finally sold to another company at fifty cents a box. There is testimony on the part of the appellant-grower that when at last she was able to get in touch with the manager, after several unsuccessful attempts to reach him, he offered to make "part restitution" and testimony on his part that he had advised her to sell the fruit for the smaller amount and advised her also that "if during the summer our financial position was not too bad we would endeavor to help her out some to increase the per box price of her fruit." There were no statements about the details of the transaction, such as the time for removing the fruit or the manner in which the down payment was to be applied.

In any event, the Commissioner of Agriculture decided that the conclusion was "irresistible" that a contract did exist, and he entered an order that the appellees pay to the grower the sum of $2,985 and, upon failure to comply, that their license be suspended. This amount was computed by multiplying the number of boxes by one dollar and crediting the payment of $250.

The matter then reached the circuit court via certiorari, where, through agreement of counsel, it was held in abeyance pending the decision of this court in Mayo v. Market Fruit Company, Fla., 40 So.2d 555. After the opinion in the cited case was rendered the circuit court quashed the order of the commissioner, having the view that we had definitely held "the Commissioner exceeded his authority in ascertaining and requiring payment by the packer of the loss sustained by the grower as a result of his breach of contract to harvest and pay for fruit, as distinguished from a failure to pay for fruit actually harvested and received by the packer."

We have re-examined the opinion and the original file in the case of Mayo v. Market Fruit Company, supra. Although such a distinction was drawn, we did not undertake to decide the commissioner's authority to discipline a dealer for breach of contract.

About the only feature common to both cases seems to be the construction of the words "to account," which we positively held to mean not only the furnishing of a statement but also the payment of the balance shown to be due. It will be recalled that the charge in the instant case was a failure of the packers "to account." In the cited case we decided that the commissioner had the authority to require the payment for the fruit actually picked and to discipline the packers for their default in this regard. We took exception, however, to the manner of arriving at the amount due. They had gathered fruit from the grove on two occasions. They paid cash for the first lot in the amount stipulated in their contract, and for the second lot they paid nothing. When the commissioner computed what they owed, he charged them with the whole crop at the agreed price and credited them with the amount paid for the first lot, the reduced purchase price the growers received for the boxes the packers did not take, and the full amount of the advance payment. We pointed out that the advance payment could only be fully earned when they had gathered the entire crop and that at the time they abandoned the contract they were entitled only to a credit of 43 1/2 cents a box for the fruit picked and paid for, that figure being arrived at by dividing the cash deposit by the total number of boxes in the crop.

The contract in that case particularly provided that the money advanced to the seller was in part payment for the fruit and should be credited "proportionately" as the fruit was "picked and paid for." In addition, there was a provision in the contract that if the buyer failed or refused "to remove the fruits as per this agreement" the advance would be forfeited to the seller, "but no additional payment [would] be expected by the * * * Seller." In view of this situation and these provisions, there did not appear any occasion to determine the commissioner's authority with reference to the fruit not gathered or, as we have just said, his power to discipline for breach of contract. The latter aspect seemed to be eliminated from our consideration. In that case, by the very contract, the retention of the unearned portion of the cash payment, which incidentally was an appreciable amount, would relieve the buyer from picking the remainder of the fruit; or in any event, that was a matter which could subsequently be determined in a court of competent jurisdiction.

In fine, the effect of that opinion was that the commissioner could discipline the buyer not only for failure to furnish a statement but also for failure to pay for the fruit shown by his own statement to have been received, and that the buyer was entitled to credits for the cash paid for fruit received and for the earned portion of the deposit.

In the instant case we have different facts. As we have said, it is not very clear what the arrangement between the buyer and the seller was. About the only point in which they are in accord is that the check for $250 was delivered by the former to the latter. We can arrive at how this payment was to be applied only by conjecture. One fact seems clear, and that is that the buyer received no fruit whatever, therefore that he could not be penalized for failure to furnish a statement or to pay the amount indicated in such a statement to be due, under the interpretation of the cited case.

Whether the Commissioner of Agriculture has the power to punish for a breach of a contract determined by him to have been committed is a point of law which we leave for the future, as that was not the specific charge here.

In the instant case we are impelled to the view that the charge the appellees were required to meet did not furnish a basis for the order entered, and consequently we approve the circuit judge's order quashing it.

Affirmed.

ADAMS, C.J., and TERRELL and ROBERTS, JJ., concur.


Summaries of

MAYO v. LENT

Supreme Court of Florida, Division A
Apr 25, 1950
45 So. 2d 879 (Fla. 1950)
Case details for

MAYO v. LENT

Case Details

Full title:MAYO, COMMISSIONER OF AGRICULTURE OF FLORIDA, ET AL. v. LENT ET AL

Court:Supreme Court of Florida, Division A

Date published: Apr 25, 1950

Citations

45 So. 2d 879 (Fla. 1950)

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