GIVENS, J.
Respondent October 7, 1940 rented a residence to appellants under oral terms and conditions which were changed from time to time.
March 8, 1942, respondent wrote to appellants as follows:
“NOTICE OF ADVANCE IN RENT
To C. V. Henderson and Mrs. C. V. Henderson,
Tenants in possession.
You are hereby notified that the rent of the premises
you now occupy is by this notice increased to Sixty-five Dollars per month payable in advance. If so paid in advance we will allow you a discount of five dollars per month, otherwise there will be no discount, the property above referred to are Lots 7 & 8 Block 270 and known as 329 N. 6th, Pocatello, Idaho, Bannock County.
“You are now in arrears which are past due the sum of $115.00 to the 7th day of March which please call and settle or make arrangements for to carry the same. The advance in rent per above is from March 7th, 42, which gives you the required Notice for same.
Signed:
S. M. Nixon 425 W. Whitman Street, Pocatello ”
and thereafter respondent insisted appellants pay accordingly.
Appellants at times were in arrears and respondents brought several suits in the justice court for the monthly payments. Appellants countered with suits to restrain respondent from thus suing, and asserted violation of the OPA statute.
May 29, 1943, appellants brought the instant action for a declaratory judgment to have the amount of rent they were legally required to pay determined, $350.00 as penalty as authorized by U.S.C., Supp. Ill, 1941-1943, See. 925 (e), p. 839; 11 F.C.A., Title 50, Appx. 25, Sec. 205 (e), p. 387; 50 U.S.C.A., App. Sec. 925 (e), p. 405
; for receiving and demanding excess rent contrary to Emergency
Price Control Act of 1942, Public Law No. 421, 77th Congress, 2nd Session, 56 Stat. 23', enacted January 30, 1942; U.S.C., Supp. Ill, 1941-1943, Sec. 901, p. 822; 11 F.C.A., Title 50, Appx. 25; 50 U.S.C.A. App., Sec. 901, p. 313; and $250.00 attorney’s fees; and injunctive relief against seriatim suits for the increased rental.
Thereafter by mutual stipulation all of the pending and undetermined suits by both parties were joined and the entire controversy merged in the instant proceeding and so presented to the trial court. ■
Appellants appealed from only that portion of the decree refusing penalties and attorney’s fees, and the transcript does not contain the evidence.
Appellants paid into court $65.00 per month rent from March 8, 1942 to date of the trial. The trial court struck a balance between the parties and determined that $98.00 was due and owing to the appellants, which amount
together with other sums was then in the hands of the clerk of the court. Respondent moved for augmentation of the record (resisted by appellants) to have inserted the records, originally omitted, showing appellants following the entry of the decree and prior to his appeal herein, drew down this money, and contends that thereby appellants have affirmed the judgment so as to be in no position to continue their appeal therefrom on the theory that one who has taken advantage of a judgment may not object to it. The motion for augmentation is allowed since it supplies a record of what actually happened which could have initially been inserted.
(Mendinin v. Milner,
47 Ida. 322, 276 P. 35;
Bedford v. Gem Irr. Dist.,
51 Ida. 105, 4 P. (2d) 366.)
Appellants insist their action in drawing down this money has no connection with or bearing on the appeal herein, namely the denial of the penalty, and we so conclude, because acceptance of benefits of a part of a judgment does not bar relief from another disconnected portion. (W
alnut Irr. Dist. v. Burke
(Cal.), 110 P. 517;
Wold v. League of Cross
(Cal.), 290 P. 460;
Guho v. City of San Diego
(Cal.), 13 P. (2d) 387;
People v. Roath
(Cal.), 144 P. (2d) 648.)
Pursuant to the OPA statute, supra, the Price Administrator’s order of September 21, 1942 fixed as maximum rent in Bannock County, State of Idaho, the rent being paid on March 1, 1942. (Volume 7, Federal Register, Number 187, September 23, 1942, p. 7501 and 75 02
; Volume 9, Federal Register, Number 184, September 14, 1944, p. 11329.) February 17, 1943, appellants, and February 27, 1943, respondent applied to the area rent director in Pocatello for rental adjustment on the premises in question. These proceedings were never concluded and no order therein was ever entered. Hence the specific order of September
21, 1942 by the National Administrator sufficiently fixed the maximum rent for this property.
“* * * The maximum rent date method of rent stabilization, which Congress clearly authorized the Administrator to adopt, and which we upheld in the Chatios case, rolls back and freezes rents as of an earlier date, and at levels which landlords and tenants had worked out for themselves by free bargaining in a competitive market, prior to the time when defense activities had injected into the market an abnormal factor resulting, or threatening to result, in rent increases inconsistent with the purposes of the Act. As the Administrator points out, variations in maximum rents for comparable housing accommodations are inherent in this method of rent control since such differences exist in a normal competitive market. In éxplaining this familiar variation, complainant’s counsel said at the argument that in normal times a landlord may find that by charging a lower rent there is a reduction in his vacancy losses and turnover, or he may thereby secure a better class of tenants. In the generality of cases (and so far as appears the present is no exception), in a normal competitive market each landlord presumably pursues the rental policy which in his judgment is most economically advantageous to him. The maximum rent date method of rent control recognizes the resulting differentials in rents, and preserves them. * * *”
Lakemore Co. v. Brown,
(U. S. Emergency Court of Appeals), 137 F. (2d) 355 at 358.
Taylor v. Brown,
(U. S. Emergency Court of Appeals), 137 F. (2d) 654 at 662;
Northwood Apartments v. Brown,
(U. S. Emergency Court of Appeals), 137 F. (2d) 809;
Avant v. Bowles,
(U. S. Emergency Court of Appeals), 139 F. (2d) 702;
Madison Park Corporation v. Bowles,
(U. S. Emergency Court of Appeals), 140 F. (2d) 316.
So as the record herein discloses this determination remained in force and effect to date. The court found as a fact that the rent on the property in question on March 1, 1942 was $55.00 a month.
Publication in the Federal Register is notice of the maximum rent allowed to be charged.
(Henderson v. Baldwin
(Pa.), 54 F. Supp. 438; July 26, 1935, c. 417, Section 7, 49 Stat.
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GIVENS, J.
Respondent October 7, 1940 rented a residence to appellants under oral terms and conditions which were changed from time to time.
March 8, 1942, respondent wrote to appellants as follows:
“NOTICE OF ADVANCE IN RENT
To C. V. Henderson and Mrs. C. V. Henderson,
Tenants in possession.
You are hereby notified that the rent of the premises
you now occupy is by this notice increased to Sixty-five Dollars per month payable in advance. If so paid in advance we will allow you a discount of five dollars per month, otherwise there will be no discount, the property above referred to are Lots 7 & 8 Block 270 and known as 329 N. 6th, Pocatello, Idaho, Bannock County.
“You are now in arrears which are past due the sum of $115.00 to the 7th day of March which please call and settle or make arrangements for to carry the same. The advance in rent per above is from March 7th, 42, which gives you the required Notice for same.
Signed:
S. M. Nixon 425 W. Whitman Street, Pocatello ”
and thereafter respondent insisted appellants pay accordingly.
Appellants at times were in arrears and respondents brought several suits in the justice court for the monthly payments. Appellants countered with suits to restrain respondent from thus suing, and asserted violation of the OPA statute.
May 29, 1943, appellants brought the instant action for a declaratory judgment to have the amount of rent they were legally required to pay determined, $350.00 as penalty as authorized by U.S.C., Supp. Ill, 1941-1943, See. 925 (e), p. 839; 11 F.C.A., Title 50, Appx. 25, Sec. 205 (e), p. 387; 50 U.S.C.A., App. Sec. 925 (e), p. 405
; for receiving and demanding excess rent contrary to Emergency
Price Control Act of 1942, Public Law No. 421, 77th Congress, 2nd Session, 56 Stat. 23', enacted January 30, 1942; U.S.C., Supp. Ill, 1941-1943, Sec. 901, p. 822; 11 F.C.A., Title 50, Appx. 25; 50 U.S.C.A. App., Sec. 901, p. 313; and $250.00 attorney’s fees; and injunctive relief against seriatim suits for the increased rental.
Thereafter by mutual stipulation all of the pending and undetermined suits by both parties were joined and the entire controversy merged in the instant proceeding and so presented to the trial court. ■
Appellants appealed from only that portion of the decree refusing penalties and attorney’s fees, and the transcript does not contain the evidence.
Appellants paid into court $65.00 per month rent from March 8, 1942 to date of the trial. The trial court struck a balance between the parties and determined that $98.00 was due and owing to the appellants, which amount
together with other sums was then in the hands of the clerk of the court. Respondent moved for augmentation of the record (resisted by appellants) to have inserted the records, originally omitted, showing appellants following the entry of the decree and prior to his appeal herein, drew down this money, and contends that thereby appellants have affirmed the judgment so as to be in no position to continue their appeal therefrom on the theory that one who has taken advantage of a judgment may not object to it. The motion for augmentation is allowed since it supplies a record of what actually happened which could have initially been inserted.
(Mendinin v. Milner,
47 Ida. 322, 276 P. 35;
Bedford v. Gem Irr. Dist.,
51 Ida. 105, 4 P. (2d) 366.)
Appellants insist their action in drawing down this money has no connection with or bearing on the appeal herein, namely the denial of the penalty, and we so conclude, because acceptance of benefits of a part of a judgment does not bar relief from another disconnected portion. (W
alnut Irr. Dist. v. Burke
(Cal.), 110 P. 517;
Wold v. League of Cross
(Cal.), 290 P. 460;
Guho v. City of San Diego
(Cal.), 13 P. (2d) 387;
People v. Roath
(Cal.), 144 P. (2d) 648.)
Pursuant to the OPA statute, supra, the Price Administrator’s order of September 21, 1942 fixed as maximum rent in Bannock County, State of Idaho, the rent being paid on March 1, 1942. (Volume 7, Federal Register, Number 187, September 23, 1942, p. 7501 and 75 02
; Volume 9, Federal Register, Number 184, September 14, 1944, p. 11329.) February 17, 1943, appellants, and February 27, 1943, respondent applied to the area rent director in Pocatello for rental adjustment on the premises in question. These proceedings were never concluded and no order therein was ever entered. Hence the specific order of September
21, 1942 by the National Administrator sufficiently fixed the maximum rent for this property.
“* * * The maximum rent date method of rent stabilization, which Congress clearly authorized the Administrator to adopt, and which we upheld in the Chatios case, rolls back and freezes rents as of an earlier date, and at levels which landlords and tenants had worked out for themselves by free bargaining in a competitive market, prior to the time when defense activities had injected into the market an abnormal factor resulting, or threatening to result, in rent increases inconsistent with the purposes of the Act. As the Administrator points out, variations in maximum rents for comparable housing accommodations are inherent in this method of rent control since such differences exist in a normal competitive market. In éxplaining this familiar variation, complainant’s counsel said at the argument that in normal times a landlord may find that by charging a lower rent there is a reduction in his vacancy losses and turnover, or he may thereby secure a better class of tenants. In the generality of cases (and so far as appears the present is no exception), in a normal competitive market each landlord presumably pursues the rental policy which in his judgment is most economically advantageous to him. The maximum rent date method of rent control recognizes the resulting differentials in rents, and preserves them. * * *”
Lakemore Co. v. Brown,
(U. S. Emergency Court of Appeals), 137 F. (2d) 355 at 358.
Taylor v. Brown,
(U. S. Emergency Court of Appeals), 137 F. (2d) 654 at 662;
Northwood Apartments v. Brown,
(U. S. Emergency Court of Appeals), 137 F. (2d) 809;
Avant v. Bowles,
(U. S. Emergency Court of Appeals), 139 F. (2d) 702;
Madison Park Corporation v. Bowles,
(U. S. Emergency Court of Appeals), 140 F. (2d) 316.
So as the record herein discloses this determination remained in force and effect to date. The court found as a fact that the rent on the property in question on March 1, 1942 was $55.00 a month.
Publication in the Federal Register is notice of the maximum rent allowed to be charged.
(Henderson v. Baldwin
(Pa.), 54 F. Supp. 438; July 26, 1935, c. 417, Section 7, 49 Stat. 500; et seq.; United States Code, Title 44, Section 301, et seq., p. 3781; 9A F.C.A., Title 44, Sec. 301, et seq; 44 U.S.C.A., Sec. 301, et seq.)
Respondent argues because the local rent administrator in Pocatello made no order, there is no basis for the present action in so far as it applies to a suit for the statutory penalties for excess rent. However, he points out no section of the statute, rule or regulation by the National Administrator requiring as a prerequisite to a suit for penalties, action by the local administrator, in addition to the order of the National Administrator, and we have found none. Volume 7, Federal Register, Number 187, September 23, 1942, p. 7502
. Either the landlord or tenant could no doubt have sought relief from the maximum so fixed, but until changed, it remained the standard. (6 Code of Federal Regulations of the U.S.A., Cum. Supp., Title 32, Chapter XI, Sections 1300.202-251; Volume 8, Federal Register, No. 9, January 14, 1943, p. 527-30.) Action under Part 1300, supra, was not required to validate, confirm or effectuate the maximum as fixed in Part 1388, Maximum Rent Regulation 49, supra.
The notice in 50 U.S.C.A., App. 925(f) (2); U.S.C., Supp. Ill, 1941-1943, Sec. 925(f) (2), p. 839; 11 F.C.A., Title 50, Appx. 25, Section 205(f) (2) ; has to do with actions by the Administrator not action by private individuals for penalties. (Cum. Supp. Code of Federal Regulations of U.S.A., Book 6, Government Printing Office 1944, p. 9346; Volume 8, Federal Register, Number 9, January 14, 1943, p. 526.)
The court also denominated this a finding:
“The Court also finds that the defendant S. M. Nixon has not knowingly, or at all, violated any provision of the Emergency Price Control Act of 1942, Public Laws 421, of the Seventy-seventh Congress, or any rule or regulation thereunder. The Court further finds that the said plaintiffs Hendersons are not entitled to recover any sum or sums of money whatsoever by reason of any alleged violation of said laws, or the rules or regulations promulgated thereunder.”
If this be considered a finding of fact, it is contrary to and inconsistent with the finding that the rent agreed upon and claimed by respondent after the 7th of March was in excess of $55.00. It is, however, more in the nature of a conclusion of law.
(Village of Hailey v. Riley,
14 Ida. 481, on rehearing at 502, 95 P. 686;
Nelson v. Nelson
(Cal.), 123 P. 1099 at 1101;
Porter v. Mesilla Valley Cotton Products C
o. (N.M.), 76 P. (2d) 937 at 940;
Harrison v. Consolidated Holding Co
(Wash.), 93 P. (2d) 729 at 731;
Rea v. Motors Ins. Corporation
(N.M.), 144 P. (2d) 676 at 679-80.)
The general rule seems to be that if there are inconsistent material findings, the judgment cannot stand.
(Fanta v. Maddex
(Cal.), 252 P. 630;
Wallace Ranch Water Co. v. Foothill Ditch Co.
(Cal.), 53 P. (2d) 929 at 936;
Austin v. Harry E. Jones
(Cal.), 86 P. (2d) 379 at 382.) However, if one finding is as to a specific and particular fact and the other is general, the former will prevail. (64 C.J., Section 1109, p. 1261; 24 Cal. Jur., Section 206, p. 973.)
The evidence is not before us, hence we do not know which, if both be findings, finds greater and controlling support from the facts.
(Independent Oil & Gas Co. v. Shelton
(Utah), 6 P. (2d) 1027 at 1032.) We must perforce presume that the evidence supports that which is a finding.
Needham v. Needham,
34 Ida. 193 at 198, 200 P. 346;
Morton v. Fuller,
48 Ida. 203, 281 P. 377;
American Mut. Building & Loan Co. v. Kesler,
64 Ida. 799, 137 P. (2d) 960; and the first finding that the rent on March 2nd was $55.00 per month is specific and, therefore, will prevail.
The maximum having been fixed by the Administrator, it was a violation of the statute for respondent to charge, receive or recover more than the maximum
as fixed by Part 1388 of September 21, 1942, supra, after November 15, 1942.
(Schwartz v. Trajer Realty Corporation
(N.Y.), 56 F. Supp. 930;
Bowles v. Lake Lucerne Plaza,
(Fifth C.C.A.), 148 F. (2d) 967.) The conclusion at law contained in the second statement by the court, i.e. non violation, must fall, necessitating a reversal of the decree, which is so ordered, with directions to determine the proper penalty and attorney’s fees,
Lapinski v. Copacino
(Conn.), 38 A. (2d) 592;
Bowles v. Krodel,
(Seventh C.C.A.), 149 F. (2d) 398; and decree accordingly. Costs to appellants.
Holden and Miller, JJ., and Lee, D.J., concur.
Ailshie, C.J., dissents.