Thierry v. Gilbert, 4050.
| Decision Date | 27 February 1945 |
| Docket Number | No. 4050.,4050. |
| Citation | 147 F.2d 603 |
| Parties | THIERRY v. GILBERT. |
| Court | U.S. Court of Appeals — First Circuit |
Albert E. Lewis and Louis S. Thierry, pro se, both of Boston, Mass., for appellant.
William H. Lewis, Jr., of Boston, Mass., for appellee.
Before MAGRUDER, MAHONEY and WOODBURY, Circuit Judges.
This is an action by a tenant to recover from his landlord the statutory penalty provided in § 205(e) of the Emergency Price Control Act of 1942, 56 Stat. 23, 50 U.S. C.A.Appendix § 925(e), on account of nine monthly overcharges of rent. Judgment for the plaintiff is affirmed on the opinion of the District Court, which fully and convincingly answers the defenses set up. 58 F.Supp. 235.
Under the Rent Regulation, the maximum rent was fixed at $50 a month, the rent being charged on the freeze date, March 1, 1942. At this time no mechanical refrigerator was supplied with the housing accommodation. On February 20, 1943, the landlord leased to the plaintiff the premises in question, including a mechanical refrigerator as part of the equipment, for a term of seventeen months beginning April 1, 1943, at a rental of $55 a month. This sum was paid and received in each of the nine months of 1943 covered by the lease. The regulation clearly provides that where a landlord supplies furnishings and equipment in substantial addition to what he was supplying on the freeze date, he nevertheless may not increase the rent until he has applied for and obtained from the Office of Price Administration an upward adjustment of the maximum rent.
We are also convinced, for the reasons set forth by the District Court, that there are nine separate violations here, to each of which the statutory penalty of $50 is applicable, rather than one violation as claimed by the defendant. It is of no consequence that the tenant went into possession under a lease for seventeen months. The rent was equally apportioned to each month's occupancy — $55 payable each month, which was $5 in excess of the legal maximum of $50 per month. Defendant's notion of the seventeen-months' term as a unit — as a single estate or "commodity", which it may be for some purposes of real estate law — would lead to the conclusion here that the maximum rent for this single estate is 17 × $50, or $850, and that the regulation is not violated until the aggregate of the successive monthly payments of $55 exceeds $850. On this view, if the term of the lease were, say, five years, the Act might well have expired before the aggregate monthly payments constituted a violation of the regulation. The defendant concedes that this cannot be the meaning of the regulation, and that the first payment and receipt of $55 under the lease constituted a violation. If so, the plaintiff was then entitled to sue for and obtain the statutory penalty of $50 for that violation. Would this have exhausted the sanctions of the statute, leaving the landlord free to collect $55 per month for the succeeding months? Obviously not. The receipt of the second, and each succeeding payment of $55, would be separate violations, and if willfully done would be criminal offenses. The $50 statutory penalty remains as an incentive to the tenant to...
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Stevenson v. Stoufer, 46736.
...judging simply from its language, to hold this provision to be other than penal in its nature.' In the case of Thierry v. Gilbert, 147 F.2d 603, 604, where there was no question of survival involved, the action was directly analogous to that now before us but for that one feature, and the 1......
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Stevenson v. Stoufer
...... . . In the case. of Thierry v. Gilbert, 147 F.2d 603, 604, where there was no. question of survival involved, the action was ......
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Walker v. Gilman, 29387.
...constituted a separate violation for which the statutory penalty of $50 was recoverable, making a total of $450. Thierry v. Gibert, 1 Cir., 1945, 147 F.2d 603. result seems unduly severe--one might almost say, unconscionably so--under the facts of the particular case. The rigors of original......
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Desper v. Warner Holding Co.
...* * *." This case was subsequently appealed. In upholding the District Court, the Circuit Court of Appeals stated (Thierry v. Gilbert, 1 Cir., 1945, 147 F.2d 603, 604): "The result is no doubt harsh * * * where the landlord acted innocently in making the overcharges. But as originally enact......