Gaddy v. Silverman
| Decision Date | 19 April 1952 |
| Docket Number | Nos. 33947,33958,No. 1,s. 33947,1 |
| Citation | 86 Ga.App. 239,71 S.E.2d 277 |
| Parties | GADDY v. SILVERMAN et al. SILVERMAN et al. v. GADDY |
| Court | Georgia Court of Appeals |
SYLLABUS BY THE COURT.
Where the petition, in an action to recover amounts paid for whisky in excess of maximum prices fixed by the Office of Price Administration, failed to show that the whisky was purchased by the plaintiff for use or consumption other than in the course of his trade or business, and so failed to show that the right to recover such amounts was in the plaintiff according to the Federal statutes making such excess payments unlawful, and where the alleged contract under which such amounts were paid was not in contravention of any law of this State and, by its terms, did not bind the defendants to return such amounts deposited with them, the petition failed to set out a cause of action, and it was error to overrule the general demurrers thereto.
This suit was originally brought by W. B. Gaddy against Augusta Distributing Company, a corporation. While the suit was pending, the corporation surrendered its charter, and its stockholders, Murray H. Silverman, Charles A. Schafter and B. E. Pittman, reorganized the business as a partnership under the same name. These three partners were made defendants by a consent order. The plaintiff made substantially the following allegations in his petiton as amended: On June 19, 1946, he deposited with the defendants $2,000, and on June 21, 1946, deposited an additional $2,000, both deposits being in the nature of a loan. On June 24, 1946, in consideration of said deposits, the plaintiff entered into a written agreement with the defendants, whereby he would have the right to receive from the defendants each month eight cases of fifths and thirty-two cases of pints of Seagram's Seven Crown Whisky, as long as the money was kept on deposit. It was further agreed that the deposit was to be refunded upon termination of the agreement by notice given on the first day of any month. Between June 30, 1946, and July 12, 1946, the parties agreed that, instead of the defendants' keeping the plaintiff's $4,000 deposit on hand at all times, the defendants should have the right to use said deposit to purchase a lot of bulk whisky that the defendants represented to be available to them. The defendants had made arrangements with Seagram-Distillers Corporation to bottle and case all bulk whisky purchased by them as Seagram's Seven Crown Whisky. The purchase of said bulk whisky by the defendants and the bottling of it by Seagram-Distillers Corporation would enable the defendants to make available for delivery to the plaintiff, over a period of eighteen months, 1,000 cases of Seagram's Seven Crown Whisky over and above the amount theretofore allocated to the plaintiff by the defendants under the system of allocation then in effect, and the plaintiff was to pay the defendants $4 per case for fifths or $5 per case for pints, over and above the regular price of Seagram's Seven Crown Whisky. On July 12, 1946, the plaintiff deposited with the defendants an additional $5,000, and on July 23, 1946, an additional $1,000, and with respect to these two deposits, the parties made the same agreement, except that the allocation to the plaintiff over an eighteen-month period was to be further increased by 1,500 cases of Seagram's Seven Crown Whisky. While the modification of the original contract and the making of the new contract occurred between June 30, 1946, and July 25, 1946, at a time when the Emergency Price Control Act of 1942, 50 U.S.C.A. Appendix, § 901 et seq., had expired, no deliveries thereunder were to be made between said dates, and before delivery was made under the new contract, the Emergency Price Control Act had been extended so as to revive all regulations and requirements under the 1942 act which were in effect on June 30, 1946. As the new contract provided for a $4 and $5 payment per case above the price fixed under the Emergency Price Control Act of 1946, the agreement to pay these sums was void; and as the plaintiff's conduct in entering into the contract was not accompanied by fraud, he is entitled to recover the amount of his deposits, $10,000. After the modification of the original contract, the plaintiff ordered and received from the defendants a number of deliveries of whisky and paid the defendants, at the time of each delivery, the full price at which said whisky was billed to him, but no invoice for any of said deliveries ever reflected any charge over and above the regular price for such whisky. The arrangement fixed by the defendants, whereby the plaintiff would be required to pay the defendants $4 and $5 a case over and above the regular price for said whisky is null and void and is in violation of the Emergency Price Control Act of 1942, as amended and extended, because the ceiling price for Seagram's Seven Crown Whisky was as follows: $45.21 per case for fifths, $56.77 per case for pints, and $57.63 per case for half-pints, and the provision in the new contract to pay an additional $4 and $5 per case was in violation of said act and also in violation of the State Revenue Law, which provides that 'No retailer, wholesaler, distiller, manufacturer, or other person engaged in any business operation connected with the manufacture, transportation or sale of alcoholic beverages, whiskies, or liquors shall sell, transfer or assign any such alcoholic beverages, whiskies or liquors at a price or for a total consideration which, in its fair appraisal value, shall amount to more than the legal ceiling sale price of such alcoholic beverages, whiskies, or liquors, as established by the Office of Price Administration of the Federal Government,' which State Revenue Law was promulgated by authority of section 8(h) of the Revenue Tax Act, approved February 3, 1938. The plaintiff demanded of the defendants the return of his deposit of $10,000, but the demand was refused, and the plaintiff sought judgment for the amount of the deposit.
The case was referred to an auditor by the superior court, and the auditor overruled the defendants' renewed general demurrer to the amended petition. To this ruling the defendants filed exceptions pendente lite, and they also excepted to such ruling as shown in the auditor's report. The court overruled the defendants' exceptions to the auditor's report, and error is assigned, in the defendants' cross-bill of exceptions, on this ruling and on the exceptions pendente lite.
The auditor's finding was that the plaintiff was not entitled to recover. The plaintiff's exceptions of law to the auditor's report were dismissed by the court, and the plaintiff assigned error, in his main bill of exceptions, on this ruling.
Curry & Curry, Augusta, for plaintiff in error.
Cumming, Nixon & Eve, Augusta, Arnall, Golden & Gregory, Atlanta, for defendants in error.
The petition seeks recovery of money paid to or deposited with the defendants, which the defendants agreed to use to buy bulk whisky to be bottled and made available for sale to the plaintiff. The plaintiff paid only the maximum price allowed for the bottled whisky by the Office of Price Administration when some of the whisky was delivered to him; but it is contended that the money paid for the purchase of the bulk whisky amounted to an overcharge of $4 or $5 per case, since these payments, although made during the period between June 30, 1946, and July 25, 1946, when the Emergency Price Control Act of 1942, as amended, was not in effect, were a part of the same transaction as the subsequent purchase at ceiling prices of the bottled and cased whisky, deliveries of which were made after the enactment of the Price Control Extension Act of 1946.
The statute under which recovery is sought is § 205(e) of the Emergency Price Control Act of 1942, as amended, then 50 U.S.C.A.Appendix, § 925(e), 58 Stat. 640, which provides in part: (Emphasis added.) The plaintiff did not allege that he purchased the whisky for use or consumption other than in the course of his trade or business, and therefore failed to state a cause of action under the terms of the statute.
Under the above-quoted provision of the statute, the plaintiff must allege and prove that he purchased the commodity 'for use or consumption other than in the course of trade or business'. The statute contained an exception as the basis of a cause of action; and as the plaintiff failed to negative such exception, he did not state a cause of action under the statute. Crowley v....
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