bring an action * * * ,' disqualify the tenant under this penal statute? Does the rental for re-rental in a boarding house operation take plaintiff outside the bounds of the statute?
In the case of Bowles v. Chew, D.C., 53 F.Supp. 787, 790, speaking of this section of the Act, Judge Goodman said:
'Congress said: 'the person who buys such commodity for use or consumption, other than in the course of trade or business may bring an action * * * .' (Emphasis supplied.) Thus is described the person who may sue. If the buyer of merchandise is not in the above described category, then 'the Administrator may bring such action * * * on behalf of the United States.' Thus is described the circumstances whereby the Administrator is empowered to sue. The Senate Report on the Act (Sen. Rep. #921, 77th Cong. 2d Sess. p. 26) indicates the foregoing to be the precise meaning intended by Congress.
'It is not subject to dispute that a 'person who buys * * * for use or consumption,' means, in the ordinary sense, the consumer, i.e. the general public buying over the counter, for its own use. In order that there might be no doubt that Congress intended this description to be in the ordinary sense, it added the excluding clause: 'other than in the course of trade or business.' Thus the tradesmen, i.e. merchants engaged in business, buying and selling between themselves, were not given the right to sue.
'It is clear to me that what Congress said and meant is that members of the general public who buy commodities, to use or consume themselves, may sue for treble general public who buy commodities, to use or consume themselves, may sue for treble damages, but that tradesmen, who deal and buy and sell between themselves in the course of business, may not sue one another.'
Likewise in Porter v. Pinch, D.C., 65 F.Supp. 168, page 171, Judge Lederle said: 'Where, as here, it does not appear whether or not the purchasers purchased commodities for use or consumption in the course of trade or business, nor as to whether or not any individual treble damage actions were instituted by the purchasers prior to institution of suit by the Administrator of the Office of Price Administration, the plaintiff has not established his right to damages under the so-called treble damage section of the Emergency Price Control Act, 50 U.S.C.A. Appendix 925(e).'
And in Bowles v. Cohen, D.C., 65 F.Supp. 499, page 501, Judge Ganey said: 'It would seem to me from a simple reading of the section, that since the purchases were made as averred in Paragraph Sixteen (16) of the complaint: ' * * * in the course of the trade or business of said Barclay White Company', that it is clear the purchaser has no right of action because such only exists if the purchase is made other than in the course of business, and accordingly since the buyer is not entitled to bring suit, the right to so do is vested in the Administrator. Bowles v. Chew, D.C., 53 F.Supp. 787.'
And a case right on point is Ison v. Baker, D.C., 66 F.Supp. 645, page 650, wherein Judge Dimond said: ' * * * When the plaintiffs took over the premises they went into the business of running a rooming and boarding house thereon and they intended to do so upon acquiring the lease. Therefore, I find that the plaintiffs in this case bought the commodity for which an overcharge was made for use or consumption in the course of trade or business. It is impossible to avoid the conclusion that the purchase was made for use in the course of trade and business, and it is equally impossible to avoid the further conclusion that the commodity was consumed, that is to say, the housing accommodations were occupied and used, in the course of trade and business. Such conclusions make inevitable the over-riding and determinative conclusion that under the provisions of Section 205(e), the plaintiffs never had authority to bring this action, and any authority to bring any action on account of the overcharge was at all times in the Administrator and not in the plaintiffs.'
Therefore, I conclude that the renting was made for use in the course of trade and business and that the plaintiff had no authority to bring this action; that if any authority to institute a suit for treble damages, based on overceiling rent existed, it was vested in the Administrator of the Office of Price Administration alone.
The suit accordingly will be dismissed.
© 1992-2004 VersusLaw Inc.