ALTON P. GRINDLE vs. HERMAN S. BROWN.

WILKINS, J. This is an action of contract or tort, to recover treble damages and counsel fees, arising out of the sale by the defendant to the plaintiff of an electric refrigerator at a price in excess of the maximum price prescribed by the Office of Price Administration. Emergency price control act of 1942, c. 26, Title II, Section 205 (e) (Act of January 30, 1942, 56 U.S. Sts. at Large, 23, 34). [Note Page183-1] There was a finding for the plaintiff. The Appellate Division dismissed a report, and the defendant appealed.

1. The defendant appeared specially and demurred to the declaration on the ground "that no cause of action is set forth therein of which this court can take cognizance and jurisdiction." The demurrer was overruled. If the demurrer was directed solely to the jurisdiction of the court, this ruling was right. Schaffer v. Leimberg, 318 Mass. 396. Administrator of the Office of Price Administration v. Chook, 320 Mass. 187, 190, and cases cited. The defendant, however, urges that the demurrer also raised the question of the failure of the declaration to allege that the plaintiff bought the refrigerator "for use or consumption other than in the course of trade or business." [Note Page183-2] This was a necessary part of the plaintiff's cause of action. Foley v. Day Brothers, Inc. 320 Mass. 344. We are of opinion, however, that properly interpreted the demurrer did not challenge the sufficiency of the allegations of the cause of action as such. Accordingly, it did not open for consideration possible grounds of objection to the declaration which the defendant might have urged but did not. Kenyon v. Chicopee, 320 Mass. 528, 530-531, and cases cited. There was no error in overruling the demurrer.

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2. One of the plaintiff's requests for rulings given by the judge was: "2. The evidence warrants a finding for the plaintiff in the sum of $564, plus reasonable counsel fees."

The report states that there was evidence tending to show that on May 26, 1943, the plaintiff's wife, acting as his agent, bought the refrigerator from the defendant for $200; that the ceiling price was $12; and that, before the plaintiff could make use of the refrigerator, he was obliged to spend $60 to repair it. The only other evidence arguably relating to its proposed use was in the testimony of the plaintiff's wife, who when asked, "Who did you buy it for?" answered, "I was acting for my husband."

The judge found for the plaintiff in the sum of $564 and in addition in the sum of $100 as a reasonable counsel fee. He also found that the defendant sold the refrigerator to the plaintiff acting through his wife; that the price "was in excess of the price allowed to be charged under the provisions of the Federal emergency price control act of 1942, and regulations . . . and incurred the penalties therein provided"; that the refrigerator "was of a kind covered by said law and regulations, and the transaction . . . was of a character concerned in and by said law and regulations"; that the defendant acted in good faith without knowledge of the law or regulations; that the defendant was not a dealer and had never sold a refrigerator before; and that the refrigerator was part of his household furnishings, which he was obliged to sell because his house had been sold. The findings as to good faith are of no consequence under the Federal act as it stood on the date of the transaction in question. [Note Page184-1]

As noted above in discussion of the ruling on the defendant's demurrer, an essential part of the plaintiff's case was that the purchase was "for use or consumption other

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than in the course of trade or business." It is obvious that there was no evidence warranting such a finding, even assuming that the judge so found by implication. Such a conclusion was not warranted by the fact that the refrigerator had been in the defendant's house, or that it was a commodity commonly used in private households, or that it was purchased by the plaintiff's wife on his behalf, or that he was obliged to spend money for repairs before he could make use of it. This was all equally consistent with a purchase for use in trade or business. The plaintiff is not aided by the finding that the refrigerator and its sale were of a kind covered by the law and the regulations. There would have been a violation for which the price administrator could have sued even if the purchase had been for use "in the course of trade or business." [Note Page185-1] Foley v. Day Brothers, Inc. 320 Mass. 344. The granting of the quoted request was error. Bresnick v. Heath, 292 Mass. 293, 298. Nicholas Zeo, Inc. v. Railway Express Agency, Inc. 317 Mass. 374, 379. Lawrence v. O'Neill, 317 Mass. 393, 394.

3. We find it unnecessary to consider other questions raised by the record. One of those questions is whether the judge could take judicial notice of the regulations. See Glover v. Mitchell, 319 Mass. 1, 4.

Order dismissing report reversed.

New trial ordered.