testified that average dealer markup for a rebuilt unit in March 1942 was about 100%. Defendant maintains that the ceiling price for this Frigidaire refrigerator Model M-4-37 containing a rebuilt unit should be: (1) the 'as is' list price, $ 61.50; (2) plus the net cost of the replacement unit, $ 45; (3) plus the 100% markup on the replacement unit, $ 45; plus the additional charge allowed by Sections 3(c)(d) for a one year guaranty, $ 10. Thus the ceiling price would be $ 161.50 and the price which plaintiff paid would be less than the maximum allowed.
I do not agree with this calculation. The $ 10 additional charge allowed for a one year guaranty is found only in Section 3(c)(d). Section 3(c) says, inter alia: 'If the guaranty is to last for one year or more the higher reconditioned price appearing in the table of charges may be charged.' In Section 3(d), under the heading 'Frigidaire,' the following is found: 'If a one-year guaranty is furnished, $ 5 may be added to the prices in the second column (prices for reconditioned refrigerators) for models of 1939 and 1940; and $ 10 for earlier models.' Section 3(g), which creates the price class for refrigerators containing rebuilt units, and upon which defendant relies, applies only where 'the refrigerator meets the standards of a reconditioned refrigerator and is sold with a one-year guaranty.' It appears to me that the $ 10 additional allowance for the one year guaranty applies only to refrigerators within the 'reconditioned' price class. In this price class a one-year guaranty is not required and therefore, where such a guaranty is extended, the dealer is permitted to make the additional charge. However, a one-year guaranty is a condition precedent to bringing the refrigerator within the 'rebuilt unit' price class. I am of the opinion that the Regulation intended to include compensation for this guaranty within the method prescribed for calculation of ceiling prices for 'rebuilt unit' refrigerators. Therefore, where the maximum price is computed under Section 3(g), the Regulation does not permit an additional charge for the one-year guaranty. Defendant's contention that the calculated ceiling price for this refrigerator having a rebuilt unit should include the $ 10 item is erroneous.
I give little credence to defendant's testimony that the net charge of $ 38 for the rebuilt unit evidenced by the 'packing slip' of J. J. Pocock, Inc., was, in fact, reduced from $ 45, the actual charge, by allowing a discount for defendant's hauling expense. I therefore find that the net cost to defendant of the rebuilt unit was $ 38.
Under the provisions of MPR 169 the ceiling price for the refrigerator sold to plaintiff must be computed as follows: (1) The 'as is' list price, $ 61.50; (2) plus the net cost of the replacement unit, $ 38; (3) plus the 100% markup on the replacement unit, $ 38.
Thus the maximum price for this refrigerator was $ 137.50 and the sale price exceeded the maximum price established by the Regulation by $ 21.50
Defendant urges that his repossession of the refrigerator and the return of the sale price to plaintiff constituted a rescission of the contract of sale and relieved defendant of all liability to plaintiff under Section 205(e) of the Act. Merely because defendant has returned the parties to status quo should not relieve him of liability. The liability is penal in nature and the plaintiff is not precluded from obtaining a judgment under the provisions of Section 205(e) merely because she may not be able to prove damages. The sale of the refrigerator at a price exceeding the maximum allowed was completely executed on January 4, 1944. On that day defendant incurred an absolute liability to plaintiff under Section 205(e), which he cannot escape by restoring plaintiff to status quo.
Section 205(e) of the Act, 50 U.S.C.A.Appendix, § 925(e), permits a purchaser to recover from a vendor three times the amount of overcharge or $ 50, whichever is greater, plus reasonable attorney's fees, for each sale in excess of the established maximum price, provided the defendant fails to prove that the violation was not wilful. Defendant has not met this burden. Plaintiff is entitled therefore to a judgment for $ 64.50 plus reasonable attorney's fees and costs.
Conclusions of Law
1. This court has jurisdiction of this action brought by Jeanne Trachtman pursuant to the provisions of Section 205(e) of the Emergency Price Control Act of 1942, as amended, to recover damages from defendant Jack Samit, trading as Atlas Refrigerator Service Company, for the sale of a used Frigidaire refrigerator, Model M-4-37, at a price exceeding the maximum price established therefor by Maximum Price Regulation 139, 8 F.R. 3706.
2. This Court has jurisdiction over the defendant.
3. On January 4, 1944, defendant sold and delivered to plaintiff one used Frigidaire refrigerator, Model M-4-37, for $ 159, which exceeded the maximum price established therefor by Maximum Price Regulation 139 by $ 21.50.
4. Plaintiff is entitled to recover treble damages in the sum of $ 64.50.
5. Plaintiff is entitled to recover, in addition thereto, the sum of $ 75 as reasonable counsel fees and costs.
6. Judgment may be entered for plaintiff for $ 139.50.