Allen v. Walton

• Decision Date: 04 October 1947
• Docket Number: 36936.
• Citation: 163 Kan. 642,185 P.2d 154
• Parties: ALLEN v. WALTON.
• Court: Kansas Supreme Court

185 P.2d 154

163 Kan. 642

ALLEN v. WALTON.

No. 36936.

Supreme Court of Kansas

October 4, 1947

Appeal from District Court, Sedgwick County, Division No. 3; Clair E. Robb, Judge.

Syllabus by the Court.

1. When an individual brings an action under the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 925(e), for an overcharge on merchandise purchased, he must allege and prove that the merchandise purchased was for use or consumption other than in the course of trade or business.

2. The provision of the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 925(e), establishes the sole means whereby an individual may assert his private right to maintain an action for an overcharge on goods purchased.

Payne H. Ratner, Donald C. Allen, and Frederick A. Mann, all of Wichita (Richard B. Clausing and L. M. Mattox, both of Wichita, on the brief), for appellant.

William Keith, of Wichita, for appellee.

HARVEY Chief Justice.

This was an action for three times the amount of an overcharge alleged to have been made by defendant in the sale of an automobile to plaintiff. The jury brought in a verdict for the amount of the overcharge. The court fixed the amount of an attorney's fee for plaintiff, for which items judgment was rendered. Defendant has appealed.

Briefly stated, plaintiff in his petition alleged that he is a resident of Sedgwick county; that defendant was engaged in the business of buying and selling used automobiles in Wichita; that the action was brought pursuant to the terms and provisions of United States Emergency Price Control Act of 1942, Public Law No. 421, 77th Congress, 2nd Session, 56 Statute 23, 50 U.S.C.A.Appendix, §§ 901-946, Sec. 205(e), or 50 U.S.C.A.Appendix, § 925(e); and the terms and provisions of Emergency Price Control Act of 1942, as amended by Public Law No. 383, 78th Congress, 2nd Session, or 50 U.S.C.A.Appendix, § 925(e); that pursuant to the provisions of the statute the price administrator made and published a price schedule of used automobiles in the area of Wichita under which the maximum sale price of a described automobile at Wichita on February 25, 1946, was $1227 plus $24.45 tax; that on February 25, 1946, defendants sold and delivered to plaintiff the described automobile, for which defendant charged and received from plaintiff $1830.54 which price so charged and collected by defendant from plaintiff was $579 in excess of the scheduled maximum sale price for the automobile; that by reason thereof defendant became liable and indebted to plaintiff in the sum of $1737 for which sum, plus an attorney's fee, plaintiff prayed judgment.

The answer contained a general denial except it admitted that defendant operates a used car lot in Wichita and about February 25, 1946, did sell the described automobile to plaintiff, and alleged that if the car was sold in excess of the ceiling price it was well known to plaintiff and that defendant did not willfully violate any ceiling prices or fail to take due precaution to prevent violation of the same.

Without further pleadings the case was called for trial, at which time defendant moved to dismiss the action upon the opening statement for plaintiff, which consisted of the reading of the petition, for the reason that the opening statement and the petition failed to state facts sufficient to constitute a cause of action. The court heard arguments upon the motion and withheld its ruling.

Evidence on behalf of plaintiff was introduced, which, without detailing it, may be said to have fairly supported the allegations of plaintiff's petition. Defendant demurred to the evidence 'for the reason that the same has not proven facts sufficient to constitute a cause of action. More particularly I direct the court's attention to the fact that they have failed to prove that the car was purchased for use or consumption other than in the course of trade or business.' Counsel for plaintiff contended that was a matter of defense. The court overruled the demurrer. Defendant then moved for a directed verdict in his favor 'for the reason that plaintiff has failed to allege and to prove that the car in question was purchased for use or consumption other than in the course of trade or business by said plaintiff.' This was overruled. Among other instructions given was the following:

'You are further instructed that plaintiff in order to recover must prove, that he purchased the automobile from defendant 'for use or consumption other than in the course of trade or business.''

The jury returned a verdict for plaintiff for $579 and the court awarded plaintiff an attorney's fee of $250. Defendant moved for judgment notwithstanding the verdict 'for the reason that the evidence and pleadings show that the defendant is entitled to judgment.' This was overruled and defendant moved for a new trial upon the grounds (1) erroneous rulings of the court; (2) the verdict is contrary to the evidence. This was overruled.

Defendant, as appellant here, contends that neither plaintiff's petition nor the evidence in his behalf discloses a cause of action in his favor under the Federal statute, the pertinent portion of which reads:

'If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity for use or consumption other than in the course of trade or business may, within one year from the date of the occurrence of the violation, except as hereinafter provided, bring an action against the seller on account of the overcharge. * * * If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, and the buyer either fails to institute an action under this subsection within thirty days from the date of the occurrence of the violation or is not entitled for any reason to bring the action, the Administrator may institute such action on behalf of the United States within such one-year period.' 50 U.S.C.A.Appendix, § 925(e).

This statute has been construed as authorizing the purchaser of a commodity to sue only in the circumstances in which he buys the commodity 'for use or consumption other than in the course of trade or business,' and in circumstances where that situation does not exist the administrator of the act alone has authority to sue, and the suit is on behalf of the United States.

In Bowles v. West, D.C., 63 F.Supp. 745, it was held:

'The Price Administrator alone has the right to sue on account of an overcharge where the purchase was for use or consumption in the course of trade or business.' Syl. par. 4.

In Lightbody v. Russell, 293 N.Y. 492, 58 N.E.2d 508, the syllabus reads:

'War--price control--(1) great weight must be given to Price Administrator's construction of Emergency Price Control Act as excepting industrial and commercial consumers from class who have cause of action against one selling for excessive price--(2) Congressional Committee reports corroborative and relevant--(3) plaintiffs' allegation that they are ultimate consumers does not negative their being industrial or commercial

...