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Foote v. Gerber

Supreme Court of Arizona

May 27, 1959

J. M. FOOTE, as Supervisor of Inspection of Arizona Fruit and Vegetable Standardization Service, Appellant,
Arthur GERBER and Allan Gerber, co-partners, dba Arthur Gerber & Company, Allan Gerber, individually, and Ben Ritter, Appellees.

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[85 Ariz. 368] Robert Morrison, Atty. Gen., J. Gordon Cook, Phoenix, for appellant.

Snell & Wilmer, and Don Corbitt, Phoenix, for appellees.

LOCKWOOD, Superior Court Judge.

This appeal is from a judgment which reversed and set aside the order of J. M. Foote, as Supervisor of Inspection of the Arizona Fruit and Vegetable Standardization Service. The Supervisor's order revoked the license of Arthur Gerber and Allan Gerber, co-partners doing business as Arthur Gerber & Company, and required that their license, together with identification cards issued to Allan Gerber and Ben Ritter, be returned to the office of the Supervisor.

The matter came before the Superior Court upon a complaint to review the decision of Foote, hereafter called the Supervisor, requesting a trial de novo and seeking to reverse the decision of the Supervisor on the ground that no proper hearing was had with respect to the issue of the revocation of Gerber & Company's license or identification cards. All parties agree this procedure was taken pursuant to A.R.S. § 3-495, and the Administrative Review Act, A.R.S. Title 12, Chapter 7, Article 6.

After filing of all pleadings in the review action including a reporter's transcript of the proceedings had before the Supervisor, Gerber & Company filed a motion for summary judgment. No new additional testimony was presented, but supporting and controverting affidavits were filed, and after extensive oral argument on the motion, and filing of written memoranda, the matter was submitted on the record. The Superior Court thereafter without making findings of fact or conclusions of law entered judgment reversing and setting aside the order of the Supervisor.

The original controversy arose as follows: In the first part of June, 1955, Martori Brothers, Distributors, a partnership, hereafter called Martori, had grown some two-hundred odd acres of cantaloupes, but had no facilities for packing them. Cook [85 Ariz. 369] Produce, another partnership, hereafter referred to as Cook, had a shed and facilities for packing, and was packing cantaloupes of its own, under its own labels. One Joe Martori, a member of the Martori partnership, asked Billy Cook one of the Cook partners, if he would pack Martori's cantaloupes. Cook was willing, but told Joe Martori that Cook had a contract with Gerber whereby Gerber did all the selling for anything Cook packed, and that either Cook or Martori would have to talk to Gerber about selling Martori's cantaloupes if Cook packed them.

According to Joe Martori's testimony, he had a conversation with one of the Gerber partners, Allan Gerber, a few days later, in which Joe Martori told Allan Gerber that Cook was going to pack Martori's cantaloupes, and asked if Gerber would sell them, and Allan Gerber agreed to do so. Billy Cook also testified that he and the Gerbers had discussed the Martori deal, which was that Martori would bring his cantaloupes to Cook's shed, Cook would pack them, and Gerber would sell them. Allan Gerber denied that he ever made any agreement with Martori to sell their cantaloupes, which were to be packed by Cook, though he knew that part of the cantaloupes packed by Cook were Martori's.

Harvesting, packing and shipping to market commenced in the latter part of June, and continued into July. About the time packing and shipping started, Cook and Martori agreed that for mutual convenience Martori's cantaloupes would be packed and shipped under the Cook label. Cook, through his employees, kept records of the number of Martori's melons as they

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were delivered at the packing shed, and they were crated separately, but crates containing Martori melons and crates containing Cook melons were loaded together in the same freight cars. Cook kept records of the number of Martori crates and the number of Cook crates loaded in each car, and noted these on the manifests which accompany every freight car to the ultimate purchaser. A copy of each manifest was retained by Cook, but none was directly transmitted to Gerber. Nineteen carloads were sold on the ground, f. o. b. Phoenix, for which Billy Cook collected the proceeds, and paid Martori his share. The sales, of course, were credited to Gerber, under the agreement between Gerber and Cook. Eighty carloads were consigned, and the proceeds were collected by Gerber in Chicago.

About the middle of July Gerber began accounting to Cook for the cantaloupes being sold. Gerber credited Cook's account for the full sale price, less Gerber's commission. Near the middle of August Gerber gave Cook a final accounting. No objection to this method of accounting was made by Cook until about September 14th. About September 1st Cook requested Gerber to advance enough money to pay the [85 Ariz. 370] latter's expenses and to pay Martori for his cantaloupes packed by Cook and sold by Gerber.

A difference of opinion arose between Cook and Gerber about the 1st part of September as to the account between them. They met in Gerber's attorneys' office, and for the first time Cook presented by Gerber a statement indicating the amount of Martori cantaloupes packed by Cook under his own label and sold by Gerber. Gerber refused to pay Martori, claiming his agreement was with Cook, not Martori. Cook and Gerber resolved their differences by written agreement, and in such agreement Cook agreed to pay Martori the amount Martori was claiming from Gerber. Thereafter Martori demanded that Gerber pay Martori, and when Gerber refused, filed a complaint with Supervisor Foote. Cook did pay Martori on June 29, 1956.

In the letter of complaint, Martori asked that the Supervisor assist the former to obtain an accounting and settlement from Gerber, and, in the event the amount claimed be not paid forthwith, that Foote authorize Martori to being suit against Gerber and his surety. Foote thereupon, on October 17, 1955, wrote Gerber, as follows:

'Arthur Gerber & Co.

'1425 S. Racine ...

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