Porter v. Beseler

BARNARD, P. J. This action was one for an injunction and for the recovery of damages pursuant to section 205 of the Emergency Price Control Act of 1942, as amended [56 Stats. 23; 50 U.S.C.A.App. § 925]. The complaint alleged that the defendant violated the provisions of this act by selling certain used motorcycles and a motor scooter at prices in excess of those permitted by the Maximum Price Regulations issued pursuant to the act.

The cause was tried before a jury and, so far as material here, verdicts were returned in favor of the plaintiff on five of the causes of action set up in the complaint, assessing damages with respect to each cause within the range provided by the act. In connection with a motion for a new trial the court approved the respective amounts of damage fixed by the jury, and the defendant has appealed from the judgment which followed.

It is first contended that the court erred in refusing to permit the appellant to introduce in evidence certain of his books of account. It is argued that the records thus excluded would have disclosed the cost to the appellant of the various articles which he sold at an excessive price. It is further argued that this evidence, while not material as tending to prove or disprove a violation of the terms of the act, was material because the jury might have been inclined to fix smaller damages in instances where the appellant had made a smaller profit.

In each instance the court admitted the appellant’s book of original entry and it appears from the testimony of a witness for the appellant that the evidence which was rejected [88]consisted of accounts which were not original entries. Most of the offered evidence was cumulative, at best, and no offer of proof was made to indicate that the evidence was material, its materiality not being obvious at the time an objection was made to' its introduction. Moreover, the evidence was not material for the purpose suggested by the appellant. The illegality of appellant’s acts consisted in selling above the established prices and not in whether or not he made any profit on the transactions. There was ample evidence that in each instance he purposely kept accounts which reflected a selling price considerably below the price at which the property was sold. The excess of the actual selling price over the established price clearly appears in each instance. The intentional violation of the law, and the amounts of the excess prices collected were the proper elements to guide the jury in determining the amounts of damages that should be allowed, and any questions as to whether the appellant made a profit on the transaction, or the amount of any such profit, was immaterial. No error appears in this connection.