Husers v. Papania

• Decision Date: 30 June 1945
• Docket Number: 2726.
• Citation: 22 So.2d 755
• Court: Court of Appeal of Louisiana — District of US
• Parties: HUSERS v. PAPANIA.

22 So.2d 755

HUSERS v. PAPANIA.

No. 2726.

Court of Appeals of Louisiana, First Circuit

June 30, 1945

Murray Anderson, of Lake Charles, for appellant.

Coleman D. Reed and Robt.R.Stone, both of Lake Charles, for appellee.

OTT, Judge.

The plaintiff alleges in his petition that the defendant, Mrs. Josephine Papania, sole him a used mechanical refrigerator for the price of $210; that the ceiling price fixed by the Office of Price Administration on the said refrigerator was the sum of $12, and the overcharge was $198; that he is entitled to collect from the defendant three times said overcharge, or the sum of $594, plus attorneys fees of $200, all in accordance with the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix, � 901 et seq., and the maximum price fixed by the Price Administrator.

The defendant filed exceptions of no cause and no right of action, and alleged in the exceptions that she was not the owner of the refrigerator; that said property was sold to plaintiff by Lucas Papania, and that plaintiff paid for said refrigerator by his personal check, payable to said Lucas Papania; that defendant had no right or title to the property, and no interest therein; that she is improperly joined as defendant in the suit.

The trial court sustained the exceptions of no right and no cause of action and dismissed plaintiff's suit.From this judgment plaintiff has appealed.

While there does not appear in the record any testimony in support of the exception of no right of action, we do find in the record a check dated June 24, 1944, for the sum of $210, signed by the plaintiff and made payable to Lucas Papania.There is also in the record a letter written by one of defendant's attorneys, dated Sept. 1, 1944, to the District Price Executive in New Orleans, explaining the connection that defendant had with the sale of the refrigerator.These documents must have been considered by the trial judge, and as plaintiff's counsel makes no objection to them, we will consider them on the appeal.

It is shown by these documents (and in fact seems to be conceded by the plaintiff) that the refrigerator belonged to defendant's son, Lucas Papania, who was at the time of the sale in the military service.He had requested his mother, the defendant herein, to sell the refrigerator for not less than the amount he had paid for it, the sum of $210.Acting under this request, the defendant sold the refrigerator to plaintiff and received from him the above mentioned check made payable to said Lucas Papania for the sum of $210.Defendant endorsed the check for her son and deposited the money to his credit in the bank.

The plaintiff bases his right of recovery on the provisions of Section 205(e) of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, � 925(e), which provides: '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 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.'

The section was amended by the Stabilization Extension Act, approved June 30, 1944, but as the transaction herein complained of took place prior to the effective date of the amending act, this case must be determined under the original act of 1942, and the orders and regulations issued thereunder.In March, 1943 the Price Administrator issued an order placing a maximum price on used refrigerators sold by a householder as well as those sold by dealers in the regular course of trade, and the maximum price fixed in this regulation for used refrigerators of the type purchased by this...