Doernhoefer v. United States, 14263.

• Decision Date: 30 July 1951
• Docket Number: No. 14263.,14263.
• Citation: 190 F.2d 358
• Parties: DOERNHOEFER v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

190 F.2d 358 (1951)

DOERNHOEFER v. UNITED STATES.

No. 14263.

United States Court of Appeals, Eighth Circuit.

July 30, 1951.

Francis A. Casserly, St. Louis, Mo., for appellant.

William J. Costello, Asst. U. S. Atty., St. Louis, Mo. (Drake Watson, U. S. Atty., St. Louis, Mo., on the brief), for appellee.

Before WOODROUGH, THOMAS and JOHNSEN, Circuit Judges.

THOMAS, Circuit Judge.

This is an appeal by the defendant from a judgment for the plaintiff in an action brought by the United States for a mandatory injunction and restitution of amounts received for five houses over and above the maximum sales price. The complaint charged violation of Priorities Regulation 33, as amended, promulgated under Title III of the Second War Powers Act, as amended, 56 Stat. 176, 50 U.S.C.A.Appendix, § 633, § 7(c) of the Veterans' Emergency Housing Act of 1946, 60 Stat. 207, 50 U. S.C.A.Appendix, § 1821 et seq., and Title 28 U.S.C. § 1345.

The appellant applied for and received priorities assistance to build ten dwelling houses located on Lots 29 to 38 inclusive on a certain block in St. Louis, Missouri. The complaint charged that the appellant sold five of the ten houses for $8,500 each when the maximum sales price was $8,000, and the court so found and entered judgment for restitution to the veteran purchasers of the $500 excess in each case. The complaint also charged that appellant failed in certain particulars to complete the houses according to the plans and specifications. The court so found and the mandatory injunction ordered him to complete each house in compliance with the specifications. It is admitted that the appellant obtained a preference rating which entitled him to procure the necessary building materials for use in the construction of the houses.

Appellant's principal defense on the issue of restitution in the trial court was that in requesting, on January 15, 1947, that the maximum sales price of the houses be increased to $9,000 per house he made a mistake in describing the lots intended to be included and referred to lots 29 to 33 inclusive, instead of lots 29 to 38 inclusive; that he did not discover the mistake until a comparatively short time prior to the trial; and for failure to complete the houses according to certain of the specifications he contended that he had allowed the purchasers a credit in each case of $100.

The court made findings of fact and entered the judgment against the defendant from which this appeal was taken.

Reversal is sought on the grounds that: 1. The court lacked jurisdiction of the subject matter of the controversy; 2. The court had no power to grant restitution; 3. The court erred in holding that appellant had failed to complete the houses in some respects according to the specifications because the finding is not sustained by competent evidence and is against the greater weight of the evidence; and 4. The court erred in excluding the testimony of an FHA witness that he would have given appellant an increase in selling price to $8,600 on all ten houses had such increase been requested.

Counsel for appellant argues that the district court lacked jurisdiction of the subject matter of the controversy because § 7(a) of the Veterans' Emergency Housing Act of 1946, 60 Stat. 207, 50 U.S.C.A. Appendix, § 1821 et seq., authorizes an injunction or "other order" only against a person who is presently violating or who is about to violate any of the provisions of § 5 of the Act. Section 7(a) provides that upon a showing that "any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of section 5 of this Act * * * a permanent or temporary injunction, restraining order, or other order may be granted * * * by the appropriate court." (Emphasis supplied.) Counsel relies upon the authority of Moore v. United States, 5 Cir., 182 F.2d 332. Since counsel filed his brief in this case the decision of the Fifth Circuit has been reversed in United States v. Moore, 340 U.S. 616, 71 S.Ct. 524. The Supreme Court followed its own decision in Porter v. Warner Holding Co., 328 U. S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332, saying "Adhering to the broad ground of interpretation of the `other orders' provision adopted in the Warner case, we think the order for restitution * * * was permissible * * *." 340 U.S. 616, 71 S.Ct. 526. See, also, Ebeling v. Woods, 8 Cir., 175 F.2d 242.

It is true the Moore case arose under the Housing and Rent Act of 1947, 50 U.S.C.A.Appendix § 1881 et seq., but the language of § 206 of that Act and that of § 7(a) of the Veterans' Emergency Housing Act of 1946 is virtually the same; and since not only the language of the two acts is the same but the purpose of the legislation is the same, they should be construed...