Basler v. Sharp & Fellows Co.

BARNARD, P. J. This is an action to recover the rental for .some road-building equipment used by the defendant on a certain job between about November 1, 1942, and February 15, 1943. Thereafter, the defendant paid part of the rental charged but refused to pay the balance, claiming it was in excess of the maximum charges allowed by O. P. A. regulations, and stating that “0. P. A. rates would govern.” The plaintiff presented the matter to the 0. P. A. officials, it was referred by the Washington office to its San Francisco office, some sort of a hearing was there had, and the plaintiff again presented his bill for the balance of the rental to the defendant, claiming that the same had been approved by the 0. P. A. authorities. The defendant refused to pay and this action followed.

The complaint alleged a written agreement for the leasing of the equipment at stated prices per hour, all to be fully operated and maintained by the plaintiff; that the agreement was thereafter modified by mutual consent to meet the requirements and regulations of the 0. P. A. by reducing the price per hour on some of the equipment and adding a monthly rental on one machine; that the equipment was furnished for certain times at the reduced rental; and that $20,596.78 was thus earned, of which only $8,388.19 had been paid. Separate counts were set up based on quantum meruit and on an account stated, and the prayer was for the balance of $12,208.59.

In its answer the defendant denied the plaintiff’s ownership of the equipment, disputed the number of hours it had used the equipment, and as a separate and affirmative defense alleged that the amounts as charged by the plaintiff are in excess of and in violation of Maximum Price Regulation No. 134 of the Office of Price Administration. This regulation will be referred to as the regulation.

The court found in all respects in favor of the plaintiff, finding that the rental contract had been executed; that it had been modified by mutual consent in order to meet with the approval, requirements and regulations of the 0. P. A.; [483]that the equipment had been furnished to and used by the defendant; and that there was a balance of $12,208.59 owing to the plaintiff. Judgment was entered for that amount and the defendant has appealed.

The court’s findings with respect to the length of time during which the various pieces of equipment were used are fully sustained by the evidence and are not seriously questioned by the appellant. Appellant’s main contention is that the respondent’s charges for the rental of this equipment, having been set forth on a per-hour basis, are in excess of the maximum prices established by the regulation and permitted thereunder. A copy of the regulation was introduced in evidence. Section 1399.1 thereof contains a prohibition against renting such machinery or supplying such services at higher than the maximum prices established by the regulation. Section 1399.2 fixes rental prices in accordance with an attached schedule on what may be called a bare basis, being the rental of machinery where it is to be maintained and operated by the lessee. It provides for the rental of such machinery on a daily, weekly or monthly basis depending on the number of hours per day it is used, the number of days or weeks and other facts depending upon whether the use was continuous or not. Section 1399.5 provides that rental for equipment leased on a per-hour basis shall be determined under the provisions of section 1399.2 under varying conditions. Section 1399.6 covers the matter of maximum charges for operating or maintenance services. This is material here as this equipment was leased to be fully operated by the respondent, that is, the respondent was to furnish the operators and maintain the equipment, including repairs, fuel and lubrication. Subdivision (b) of that section provides for the fixing of maximum prices for such operating services in cases where the lessor had no established charge for that purpose on March 31, 1942, and is the part applicable to this respondent. It provides for an application by the lessor, in such a case, to the O. P. A. and provides that the charge may not be made unless it has been approved by the O. P. A. or has not been disapproved within thirty days after receipt of the report. Section 1399.7 provides that where equipment is leased on a fully operated basis the combined rental shall not exceed the maximum bare rental for the equipment plus the maximum charges for operation and maintenance allowed under the regulation.