Jones v. Chennault

• Decision Date: 17 December 1948
• Docket Number: No. 5.,5.
• Citation: 35 N.W.2d 256,323 Mich. 261
• Parties: JONES v. CHENNAULT.
• Court: Michigan Supreme Court

323 Mich. 261

35 N.W.2d 256

JONES

v.CHENNAULT.

No. 5.

Supreme Court of Michigan.

Dec. 17, 1948.

Appeal from Circuit Court, Wayne County, in Law; Thomas J. Murphy, judge.

Suit by David Jones against Albert B. Chennault to recover the amount of monthly rentals collected in excess of amount fixed by Office of Price Administration. From a judgment for defendant, plaintiff appeals.

Judgment affirmed.

Before the Entire Bench.

Julian W. Perry and Bledsoe & Taylor, all of Detroit (Hobart Taylor, Jr., of Detroit, of counsel), for plaintiff-appellant.

Loomis, Jones, Piper & Colden, of Detroit (George Stone, of Detroit, of counsel), for defendant and appellee.

CARR, Justice.

For some years prior to the bringing of this action plaintiff rented from defendant certain premises in the city of Detroit. Claiming that during the period from June 1, 1942, to and including August 28, 1945, the monthly rental collected was in excess of the amount fixed by the Office of Price Administration under authority of the Federal Emergency Price Control Act of 1942, as amended,^* plaintiff brought suit to recover the alleged overcharges. At the conclusion of plaintiff's proofs on the trial in circuit court, defendant moved to dismiss on the ground that, under plaintiff's testimony, the premises consisted of two separate and distinct dwellings. The trial court granted the motion, indicating his conclusion from the testimony that the house occupied by plaintiff was not a single dwelling, but that three families lived therein and plaintiff was conducting a business in the basement. Judgment was entered in accordance with the opinion of the trial court, and plaintiff has appealed.

The testimony taken on the trial does not appear in the record. In lieu thereof, the parties entered into an agreed statement of facts, which we assume is based on the proofs introduced on behalf of plaintiff. It appears from this stipulation that plaintiff moved into the premises in question in 1928, the monthly rental therefor, including house and basement, being $35 per month. Thereafter he established in the basement a barbecue business which he conducted continually from 1928 to 1945. Entrance to the basement may be had from the street without passing through the house, and the situation is such that it can be used independently of the residential portion of the building.

Defendant purchased the premises in July, 1941. At that time he sent to plaintiff a letter, advising with reference to the location of the office where the rent was to be paid, and stating further that the rate would be $35 per month payable on the 28th day of each month thereafter. In September following, the rental was fixed at $35 per month for the living quarters and $40 per month for the basement. Thereafter plaintiff made payments accordingly to and including September, 1945. With the exception of two months during the period in question, separate receipts were given for the rental sums. The averments of the declaration indicate that plaintiff made some objection to the increased rate for the premises, but without avail. The declaration further asserted that plaintiff had made overpayments at the rate of $40 per month for the premises during the entire period from September, 1941, to September, 1945, and was entitled to recover accordingly. He did not, however, seek treble damages nor any penalty because of the making of the alleged overcharges. In his pleading he asked for the repayment of the monthly rental charges, with interest, and attorney's fees.

It further appears from the agreed statement of facts that in July, 1942, the defendant registered the premises in question with the area office of the Office of Price Administration. Such registration indicated that there were two dwelling units in the place, that it consisted of 16 rooms, and that the rent was, on April 1, 1941, the so-called maximum rent date, the sum of $35 per month. It further appears that this document comprises the Office of Price Administration file for said premises.

The question at issue on this appeal is whether the plaintiff made such a showing by his proofs as to entitle him to recover from the defendant, either in the amount claimed or in a lesser sum. Under section 925(e) of the Emergency Price Control Act, the buyer of a commodity for use or consumption other than in the course of business may bring an action against a seller to recover an overcharge. If such sale is made in the course of trade or business, the administrator under the act is authorized to bring suit. Armour & Co. v. Blindman, et al., D.C., 73 F.Supp. 609;Bledsoe et al. v. Coxe Lumber Co., Inc., et al., 229 N.C. 128, 48 S.E.2d 50. Insofar as plaintiff's alleged cause of action was based on the statute, the burden rested on plaintiff to show that he was within the class for the benefit of which such a right of action was created. It was, in other words, incumbent on him to show that the use of the residential portion of the premises was purchased by him for himself and his family rather than for the principal purpose of rerenting to others. If plaintiff purchased the right to use the premises for the predominant purpose of reselling such use, then the transaction was in the course of trade or business, with no consequent statutory right of action in plaintiff. Messer v. Mamches, D.C., 71 F.Supp. 197.

In Hall v. Palmer, 54 Mich. 270, 20 N.W. 49, 50, this court, in denying to the plaintiff recovery of expenses incurred under the drain law, said:

‘The right of action relied upon by plaintiff is purely statutory, and he must bring himself within its terms by showing the existence of the facts upon which such liability is predicated.’

The general rule is stated more at length in 1 C.J.S., Actions, § 9, page 991, as follows:

‘Moreover, a cause or right of action, under such a statute, carries with it all of the conditions or limitations, prescribed by the statute, and one seeking to avail himself of the statutory right to recover for a breach of the statutory duty cannot complain of the conditions or limitations, but must bring himself within the provisions of the statute, and show not only a violation of the statute but that the injury complained of was occasioned thereby, and that all the conditions and limitations prescribed by the statute have been complied with, and that a condition to which the statute directly relates has a causal connection with his injury.’

See also Leith v. Citizens Commercial & Savings Bank, 304 Mich. 508, 8 N.W.2d 156. From the record before us it does not appear that plaintiff rented the premises primarily or predominantly for his own use during the period here in...