Link v. Kallaos, 2660.

• Decision Date: 25 July 1944
• Docket Number: No. 2660.,2660.
• Citation: 56 F. Supp. 304
• Parties: LINK et al. v. KALLAOS et al.
• Court: U.S. District Court — Eastern District of Missouri

56 F. Supp. 304

LINK et al. v. KALLAOS et al.

No. 2660.

District Court, E. D. Missouri, E. D.

July 25, 1944.

George C. Dyer, of St. Louis, Mo., for plaintiffs.

Ray Lahey, of St. Louis, Mo., for defendants.

HULEN, District Judge.

Plaintiffs' complaint is for damages under Section 205(e) of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix § 925(e), for an alleged overcharge on rent and is set up in 12 counts, claiming overcharge for 12 months, May 1943 to April 1944. The overcharge claimed in each count is $5 for which plaintiffs ask judgment in the sum of $50 and attorney's fees on each count and for each month. Defendants filed motion to dismiss counts 2 to 12 inclusive (designated by defendants as motion to "Strike") on the ground that plaintiffs have but one cause of action and that "said counts 2 to 12 inclusive constitute a splitting of a single cause of action". By brief filed, we understand defendants' position to be that plaintiffs are limited in their recovery to the amount of the overcharge for the 12-month period—"for $50.00 or for treble the amount by which the consideration exceeds the applicable maximum price, whichever is greater"— and a reasonable attorney's fee, as distinguished from plaintiffs' claim of $50 for each month. On the question presented it is our opinion that defendants are correct in their interpretation of the Act but that the complaint is not susceptible (at this time) to the interpretation placed upon it by the defendants.

As we read the statute and as we believe it should be interpreted, the thing proscribed by the law is the "selling" of a commodity above the maximum price set by regulations under the Act. Though the statute provides that "receipt of rent * * * shall be deemed the * * * selling of a commodity * * *," we believe that the determination of the question under consideration turns on what is the act of "selling." Certainly it is not "receipt of rent." In the present case, as we read the complaint, defendants sold the plaintiffs the right or the use and occupancy of an apartment. This commodity, namely, right to use and occupancy of the apartment, was sold at a stipulated price per month. It so happens that the plaintiffs used the apartment thus sold for a period of 12 months. Whether the defendants registered their apartment at a rental of so much per month or not, the rental was nevertheless fixed at the maximum being charged on the 1st day of March, 1942. The Act provides that no person shall receive any rent higher than the maximum rate thus fixed. It so happens that the plaintiffs used or purchased 12 monthly installments or rather portions, of the right to use and occupancy of the apartment. There was thus but one "selling" and not 12 sellings, if defendants' interpretation of the pleadings is correct.

We think the term "selling" as used in the statute, and the act, which give rise to the action, is used in the accepted meaning and is synonymous with the term sale. This term has a well recognized meaning.

"An agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price.

"`A contract by which property is transferred from the seller to the buyer for a fixed price in money paid or agreed to be paid by the buyer.' De Bary v. Dunne C.C., 172 F. 940.

"There is a fundamental distinction between a contract to sell in the future and a present sale—often expressed by `executory' and `executed' sales. It depends upon whether the property in the goods is transferred. If transferred, there is a sale though the price be not paid; if not transferred, it is a contract of sale, even though the price be paid; Williston, Sales Sec. 2. Conditional sales constitute an intermediate class—the assent to the transfer, though not the transfer, being given at the time the bargain is made. Such partake more of the nature of sales than of contracts of sale, the title being transferred by force of the original bargain; id. Sec. 6." Bouvier's Law Dictionary, Vol. 2, Rawle's Third Revision, page 2983.

We can see no essential difference between the case of rental as thus presented, and the sale or "selling" of a recognized commodity. To take a common illustration, meat. The price of meat is fixed at so much per pound, just as the price for the use and occupancy of the apartment in...