Bowles v. Jung

S.D. California

Bowles v. Jung

57 F. Supp. 701, 1944 U.S. Dist. LEXIS 1791

CourtDistrict Court, S.D. California

DecidedNovember 21, 1944

DocketCivil Action 3475

StatusPublished

Cited by11 cases

This text of 57 F. Supp. 701 (Bowles v. Jung) is published on Counsel Stack Legal Research, covering District Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bowles v. Jung, 57 F. Supp. 701, 1944 U.S. Dist. LEXIS 1791 (S.D. Cal. 1944).

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Opinion

YANKWICH, District Judge.

The action was instituted on February 25, 1944, by Chester Bowles, the Administrator of the Office of Price Administration, against Jim Jung, individually, and doing business as Victory Produce Company. It charges violation by the defendant of Maximum Price Regulation 292, as amended (8 Federal Register 135). The complaint avers total excess charges of $1414.17, and seeks to recover $4242.51, being three times the aggregate amount by which the price received by the defendant from the sale of 1581 lugs of tangerines is alleged to have exceeded the maximum prices provided in the regulation.

*703 The defendant is a produce merchant engaged in selling, as a wholesaler and, what the regulation calls, “an intermediate seller,” selling to other intermediate sellers and retailers. Although he engaged in the selling of all kinds of produce, the transaction involved was his sole venture into the field of tangerines, and covered only the short period between November 26 and December 6, 1943. The individual sales were made from two bulk purchases made by the defendant. In view of the discussion to follow, we reproduce in full, in the margin, the definitions which the regulation gives to certain terms, and the for-mute which it establishes for determining prices. 1

It was the contention of the Administrator in the pre-trial brief that one of the purchases was made by the defendant as an intermediate seller, and the other as a commission merchant on-consignment. At the trial, the Administrator modified his position as to the first purchase by endeavoring to show that the purchase was a direct purchase by the defendant from a grower, through an agent.

The first of these transactions may be designated as the George Ko transaction involving 481 lugs of tangerines. The de *704 fendant’s resale price on this shipment was $2.90 per lug on cash-and-carry sales and $3.20 on delivered sales. The Administrator contends that these charges were erroneous, that the ceiling price on cash-and-carry sales was $1.65 per lug and $1.82 on delivered sales. The Administrator’s computation is arrived at as follows:

30 pounds net at .045 lb. $1.35 Packer s f.o.b. ce price at point of shipn Bakersfield area, Califoi

Freight to Los Angeles via Pacific Produce Co. trucks based on actual freight paid. .1545

$1.5045 Packer s delivered ceiling price to Los Angeles

Victory Produce Co. Intermediate Seller ceiling prices

$1.5045 at 1.095 = $1.65 Wholesaler cash-and-carry ceiling price

1.5045 at 1.21 = $1.82 Service wholesaler ceiling price.

The facts relating to this transaction, as testified to by the manager of the defendant, were these:

Ko was a Chinese who represented to the defendant that he might supply him with produce originating in Bakersfield, Kern County, California. The defendant agreed to secure for him an agent’s license under the laws of California, California Agricultural Code, Sec. 1263(b), St.1939, p. 2327, and to repay him the amounts expended in purchasing produce and, in addition, pay him a commission. Some tomatoes were shipped under this agreement.

However, before the tangerine deal got under way, this arrangement was abandoned and the defendant, through his general manager, agreed with Ko that Ko should buy produce for his own account and resell it to the defendant, drawing against them, in his own name, for the amount of the purchase. While the oral testimony given in the courtroom by Ko, called as a witness by the Administrator on rebuttal, is somewhat at variance with the summary I have just given, I believe that, on the whole, the testimony offered by the defendants, corroborated by the written evidence in the case, shows unequivocally that the transaction was carried out in substantially the manner in which the manager testified.

Ko was given a book containing unfilled drafts. He was authorized to fill out a draft for each purchase, giving in detail the article, the purchase price, both unit sale and total, and to draw the draft for the total amount. The original of the draft was sent to defendant’s bank at Los Angeles, a copy was sent to the defendant’s office, and a third copy was retained in the book. Upon receipt of the draft, the bank notified the defendant, who then issued a check to cover the amount, and the bank, thereupon, honored the draft.

The testimony of Ko, given orally in court, confirms the conclusion that he bought the tangerines for his own account and resold them, as an accommodation, to the defendant. He testified that the grower from whom he bought the tangerines (Gus Crane) charged his account with their price, that he had had other transactions with him, and that he settled with him from time to time. When he received the money from the drafts, he did not turn it over to Crane. He deposited it to his own account in his own bank. From this account he paid the growers with whom he dealt, including Crane. Had Ko disposed of the tangerines to others, or had he failed to pay the grower, the latter could not have sued the defendant. And Crane, even if he knew of the existence of the Victory Produce Company, and that the tangerines were being shipped to them, could not have recovered from them the price Ko had agreed to pay him.

Ko testified that he was to receive a commission of five cents per lug, in addition to the price he actually paid. There is no evidence in the record that he ever *705 did receive it. The books of the company, the inspection of which was available to the Administrator, fail to disclose any payment to Ko other than the payment of the drafts for the actual amount of the purchase price.

The defendant’s file in the case of each purchase, contained a copy of the draft, a copy of the check, and a credit memorandum prepared by the defendant showing the transaction in detail,

In view of the discussion to follow, we set forth in the margin the form of one of these drafts:

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