Bayne v. Kingery

• Decision Date: 10 June 1948
• Docket Number: 30546.
• Citation: 195 P.2d 98,30 Wn.2d 922
• Parties: BAYNE v. KINGERY et al.
• Court: Washington Supreme Court

195 P.2d 98

30 Wn.2d 922

BAYNE v. KINGERY et al.

No. 30546.

Supreme Court of Washington

June 10, 1948

Department 2

Action by Ted Bayne against Warren Kingery, individually, Warren Kingery and Anna Kingery, his wife, as a marital community and others, to recover damages under Emergency Price Control Act 1942, § 1 et seq., as amended, 50 U.S.C.A.Appendix, § 901 et seq., for alleged violation by defendants of maximum price regulation in sale of tractor. From judgment of nonsuit, the plaintiff appeals.

Affirmed.

Appeal from Superior Court, Mason County; D. F. Wright, Judge.

Warner Poyhonen and Lester Stritmatter, both of Hoquiam, for appellant.

B Franklin Heuston and Chas. R. Lewis, both of Shelton, for respondents.

MALLERY Chief Justice.

The plaintiff was engaged in the business of logging and the defendants were farmers who had from time to time carried on logging operations. None of the parties were engaged in the business of buying, selling, trading or dealing in machinery and equipment. The defendants owned a 1945 model Cletrac tractor suitable for logging operations. The plaintiff sought it out and purchased it for the sum of $5,250 which the defendants represented as being within the 'ceiling' price as prescribed by the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 901 et seq., and the rule and regulations of the O.P.A. promulgated under and by virtue of the Act. The plaintiff bought the tractor for use in his own logging operations. The price he paid was in fact $1,824.08 over the 'ceiling' price. He brought this action to recover the overcharge and such penalties as are provided for by the Act.

The trial court granted the defendant's motion for a non-suit.

The plaintiff appeals and assigns this ruling as the error relied upon.

The pertinent section of the Emergency Price Control Act of 1942 is Title 1, Sec. 4(a), which reads as follows:

'It shall be unlawful, regardless of any contract, agreement, lease, or other obligation heretofore or hereafter entered into, for any person to sell or deliver any commodity, or in the course of trade or business to buy or receive any commodity, or to demand or receive any rent for any defense-area housing accommodations, or otherwise to do or omit to do any act, in violation of any regulation or order under section 2, or of any price schedule effective in accordance with the provisions of section 206, or of any regulation, order, or requirement under section 202(b) or section 205(f), or to offer, solicit, attempt, or agree to do any of the foregoing. (Italics ours.)'

From this it will be seen that the prohibition of the Act applies to any person who sells or delivers any commodity in violation of the regulations. There are no exceptions as to sellers, but as to buyers, the prohibition is against any buyer: '* * * in the course of trade or business to buy or receive any commodity * * *', in violation of the Act.

The questions presented in this case are: Is the appellant in pari delicto with the respondents and can he maintain his action?

The pertinent section of Emergency Price Control Act of 1942, as amended, F.C.A. Title 50, Appendix 25, 50 U.S.C.A.Appendix, § 901 et seq., is Sec. 205(e), which reads as follows:

'(e) If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximun 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. * * *'

The appellant contends that under the facts of this case he bought the tractor for use or consumption which under the statute would permit him to maintain his action. The trial court held that he had purchased the tractor in the course of trade or business and being unable to maintain his action, dismissed it.

While these questions have not been passed upon in this state Before , there is ample authority elsewhere contrary to appellant's contentions and none in support of it. See the following cases: Allen v. Walton, 163...