Opinion
February 6, 1950.
In an action to recover the difference between the purchase price paid to the corporate defendant by fifteen sets of plaintiffs and the assignor of the sixteenth set of plaintiffs and the modified maximum resale price fixed by that defendant in its application for preference rating to obtain the materials with which that defendant built the houses so sold, judgment was entered after trial in favor of each set of plaintiffs for the respective amounts of such excess, less $100 deducted for alleged closing adjustments, together with appropriate interest from the respective dates of payment. The corporate defendant appeals from the judgment against it. Plaintiffs appeal from the judgment insofar as it dismisses the complaint against the individual defendant and from so much of the judgment which fails to award to each set of plaintiffs the $100 deducted for closing adjustments. The attorneys for the parties have stipulated that, if this court affirms as to the balance of the judgment, the judgment should be modified by increasing the principal amount awarded to each set of plaintiffs by $100, together with appropriate interest, except that in the case of plaintiff Tuck, the principal amount awarded to him be reduced to $453.38, together with appropriate interest. Judgment modified on the facts in accordance with the stipulation and, as so modified, the judgment is unanimously affirmed, with costs to plaintiffs-respondents-appellants. In our opinion, the provisions of the Second War Powers Act (U.S. Code, tit. 50, Appendix, § 633) and the regulations promulgated thereunder create a civil action for damages in favor of the purchasers of houses built with materials obtained thereunder. Such a civil action may be brought in the State courts. The measure of damages is the excess of the price actually paid over the maximum resale price fixed in the application for the preference rating. ( Keele v. Holt, 171 F.2d 480; Heinicke v. Parr, 168 F.2d 194; Cantrell v. Golden Crest Homes, 192 Misc. 254.) Since this cause of action is based on a liability created by statute and by contract, there is no individual liability on the part of the president of the corporate owner, in the absence of proof that the regulations defined the term "owner" as including an agent as well as the principal. Johnston, Sneed, Wenzel and MacCrate, JJ., concur; Nolan, P.J., concurs in the result. [See post, p. 1082.]