Gilbert v. Thierry

• Decision Date: 27 February 1945
• Docket Number: Civil Action No. 2631.
• Citation: 58 F. Supp. 235
• Court: U.S. District Court — District of Massachusetts
• Parties: GILBERT v. THIERRY.

58 F. Supp. 235

GILBERT v. THIERRY.

Civil Action No. 2631.

District Court, D. Massachusetts.

October 25, 1944.

Judgment Affirmed February 27, 1945.

COPYRIGHT MATERIAL OMITTED

William H. Lewis, Jr., of Boston, Mass., for plaintiff.

Albert E. Lewis and Louis S. Thierry, pro se, both of Boston, Mass., for defendant.

Judgment Affirmed February 27, 1945. See 147 F.2d 603.

WYZANSKI, District Judge.

This case presents critical questions as to the rights of tenants and landlords under the regulations of the Office of Price Administration.

On the effective date of Maximum Rent Regulation 53, landlord Thierry was letting an apartment to tenant Thieme on a monthly basis at $50 a month. The landlord reported these facts to the OPA in his first registration statement. At that time the landlord was not supplying an electric refrigerator or any furniture. Tenant Thieme moved out, and then the landlord bought and installed an electric refrigerator. Thereupon he leased the premises and the refrigerator to tenant Gilbert for one year and five months, beginning April 1, 1943, at $55 a month. Gilbert made nine monthly payments at the $55 rate. Then in January 1944 the landlord offered to refund for each of the 9 months $5 or a total of $45. On the advice of counsel the tenant stood out for $450 on the theory that Section 205(e) of the Emergency Price Control Act of 1942, 56 Stat. 23, 33, 50 U.S.C. A.Appendix § 925(e), gave him the right to recover minimum damages of $50 for each monthly overpayment of rent. Not receiving the $450, the tenant brought this suit on February 1, 1944.

Four issues of law are presented: (1) Is the landlord's acceptance of the payments a violation of a regulation of the OPA; (2) if so, does Section 205(e) of the Emergency Price Control Act of 1942, 56 Stat. 23, 33, 50 U.S.C.A.Appendix § 925(e), give the tenant a right to one action for three times $45 or to nine actions for $50 each; (3) does the landlord have a valid defense on the ground that prior to any action he tendered to the tenant $45; and (4) what is a "reasonable attorney's fee" in this case?

(1) The parties agree that the OPA issued on October 22, 1942, Maximum Rent Regulation 53, which established as a maximum rental for an unfurnished apartment in Middlesex County the rent charged for that apartment on March 1, 1942. Maximum Rent Regulation 53, §§ 1388.281 (29); 1388.284 (a).

But there is a dispute as to whether, in the absence of a special order of the OPA, this maximum applies to the same apartment after an electric refrigerator has been added. The landlord's position is that the electric refrigerator is a new "housing accommodation" as defined by § 1388.293 (a) (6), copied in the margin;¹ and that under § 1388.284 (e), copied in the margin,² the maximum for such a new housing accommodation is whatever the landlord charged the first time he rented it— at least until the OPA otherwise orders.² The tenant's position is that if the landlord wishes to charge for the apartment together with the refrigerator a higher rent than the maximum set for an unfurnished apartment, the landlord must, by petition, first secure the assent of the OPA for an upward adjustment of rent in accordance with § 1388.285, copied in the margin.³

I am quite clear that the tenant's interpretation of the regulation is correct. As the next two paragraphs show, it is supported both by the usual canons of documentary construction and by the underlying policy of the system of price control.

The regulation has general provisions governing all new housing accommodations, that is, § 1388.284(e); and it also has specific provisions governing new furniture and equipment, that is, § 1388.285. If the general provisions stood alone it would be arguable that because of the broad definition of "housing accommodations" given by § 1388.293(a), the draftsman intended to embrace not only new buildings but new furniture. But that argument fails in the presence of the detailed and specific provisions applicable to new furniture. It is a well-settled canon of construction that, in order to give effect to every clause and part of a document, specific clauses prevail over repugnant general clauses, even though the general clauses are on their face sufficiently broad to cover the particular point in controversy. D. Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 208, 52 S.Ct. 322, 76 L.Ed. 704.

Moreover, the underlying policy of price control would be gravely handicapped if the landlord's construction of this regulation were accepted. Under his view if a landlord adds a $65 refrigerator, and until the OPA intervenes, he can over a period of 17 months charge $85 more rent than could have been charged under the previous ceiling. If this be sound, it is difficult to see why the addition of a $3 shower curtain or a $15 set of venetian blinds would not warrant a landlord in adding whatever he saw fit to the ceiling price, at least until such time as the agents of the OPA had time to check the reported increase, investigate it, hold hearings and enter a reduction order. Obviously a rent control scheme which had such convenient escape clauses would be of little practical value in stabilizing rents at the rates prevailing in the past. And so, if the present regulation is equally susceptible to two constructions one permitting, the other prohibiting, devices of the type mentioned, the fundamental purpose of the regulation compels the adoption of that construction which prohibits a landlord who has added one or two furnishings from raising the ceiling price until he has the consent of the OPA. Taylor v. United States, 9 Cir., 142 F.2d 808 April 26, 1944.

(2) Having concluded that the landlord violated the regulation, the Court is faced with the question as to what is the tenant's measure of damages.

Inasmuch as the violations all occurred prior to June 30, 1944, Section 108(c) of the Stabilization Extension Act of 1944, 78th Congress, 2d Sess., c. 325, 50 U.S.C.A. Appendix § 925(c), provides that the rule of damages shall be prescribed not by Section 108(b) of that Act but by Section 205 (e) of the Emergency Price Control Act of 1942, 56 Stat. 23, 33, 50 U.S.C.A.Appendix § 925(e). Section 205(e) provides that:

"If any person selling a commodity violates a regulation * * * prescribing a maximum price * * * the person who buys such commodity for use or consumption other than in the course of trade or business may bring an action either for $50 or for treble the amount by which the consideration exceeded the applicable maximum price, whichever is the greater, plus reasonable attorney's fees and costs as determined by the court. For the purposes of this section the payment or receipt of rent for defense-area housing accommodations shall be deemed the buying or selling of a commodity, as the case may be * * * Any suit or action under this subsection may be brought in any court of competent jurisdiction, and shall be instituted within one year after delivery is completed or rent is paid. * * *"

The tenant asserts that as applied to the facts of this case Section 205(e) gives him nine rights of action each for $50, that is, $450, plus attorney's fees and costs. The landlord contends it gives the tenant nine rights of action each for only three times $5, that is $135, plus attorney's fees and costs. There are authorities to support each position.⁴

I am of opinion that the authorities which support the tenant's view correctly interpret the text and the policy of the statute.

The introductory clause of the first sentence of Section 205(e) refers to any person selling a commodity; the main clause gives the remedy to a person buying such commodity. Thus at the outset, and with reference to dealings in personal property, the text places a distributive construction upon business transactions. The sale of each separate commodity sold at an over-ceiling price gives rise to a liability of $50 or treble damages, whichever is greater. The second sentence then directs that "the payment or receipt of rent * * * shall be deemed the buying or selling of a commodity." This direction is to read the section as though it said in so many words that "if any person engages in the `receipt of rent' above the ceiling, the person making the `payment of rent' may bring an action for either $50 or treble damages." As used in this context the word "rent" has the same meaning it has in popular usage and in some technical usages. It means each separate payment made by a tenant to a landlord at a specified time for the use of the landlord's premises. Compare Oxford English Dictionary, vol. VIII, p. 451 meaning 2b. M. E. Blatt Co. v. United States, 305 U.S. 267, 277, 59 S.Ct. 186, 83 L.Ed. 167; Duffy v. Central R. Co., 268 U.S. 55, 63, 45 S.Ct. 429, 69 L.Ed. 846; Blackstone, Commentaries, vol. 2 pp. 41-43. It does not mean a single right to all the payments made upon a series of occasions in return for a continuous estate conveyed by the landlord. Compare 2 Washburn Real Property, 5th Ed., 284. Thus the distributive construction already adopted for transactions in personal property is applied to leases of real property. Each occasion when a person engages in the receipt of rent gives rise to a separate liability.

There is nothing unusual in the legislature affixing a separate liability to every repetition of a wrongful act. It is commonly done in criminal statutes. Blockburger v. United States, 284 U.S. 299, 301-303, 52 S.Ct. 180, 76 L.Ed. 306; Ebeling v. Morgan, 237 U.S. 625, 628, 35 S.Ct. 710, 59 L.Ed. 1151. And it is also done in qui tam statutes. United States ex rel. Marcus v. Hess, 317 U.S. 537, 552, 63 S.Ct. 379, 87 L. Ed. 443.

An interpretation of Section 205 (e) so as to impose similar separate liabilities is consistent with the underlying policy of both the Emergency Price Control Act as a whole and the particular section 205 (e). The Act as a whole establishes a far-flung scheme of price regulation to...