DONOVAN, District Judge.
By complaint filed April 3, 1950, plaintiff brings action under § 7(c) of The Veterans' Emergency Housing Act of 1946 against defendant, a building contractor. Relief is sought by way of mandatory injunction requiring defendant to make restitution to certain nonveteran purchasers of houses constructed by defendant, with reference to which plaintiff contends there were "omissions" and "substitutions" amounting to a departure from the "specifications contained in the application as approved by the Federal Housing Administration" governing the maximum sale prices. The amounts involved range from $77 to $276. It is conceded that the individual purchasers who would benefit by recovery are barred by the applicable statute of limitation. Plaintiff contends, however, that said limitation does not apply to it. The court finds for plaintiff in respect to the statute of limitations.
60 Stat. 207, 50 U.S.C.A.Appendix, § 1821 et seq.
Priorities Regulation 33, 11 F.R. 601, 4085, issued pursuant to provisions of Title III of the Second War Powers Act, as amended, 56 Stat. 176, 50 U.S.C.A.Appendix, § 631 et seq., and Executive Orders thereunder, pleaded in paragraph 3 of said complaint.
The houses in question were built in 1946. The plans and specifications are of a rather makeshift character. To illustrate, in Exhibit 3, page 4, is specified "range space and refrigerator space * * * [and] built-in kitchen table", which does not mean what it says at all. Custom and practice and the judgment of the contractor would then be relied upon to some extent. The principal witness for plaintiff emphasizes that the so-called plans and specifications were in effect nothing more than a check list used in connection with the application signed by defendant. In some instances the articles and materials checked were unobtainable on the market, and substitutes of greater value were used in lieu thereof.
Harold W. Fridlund, who was an architect in charge of such matters for the Housing Administration, testified as follows:
"Q. Mr. Fridlund, referring to the blueprint and plaintiff's exhibit No. 3 I will show you the portion marked page 4. Referring particularly to the kitchen where it says `range space and refrigerator space' would that indicate to you that there should be a range and refrigerator in that location? A. No.
"Q. Referring now to the dotted line marked `built-in kitchen table' would that necessarily indicate to you that as a part of these plans and specifications a kitchen table should be in that location and furnished by the contractor? A. No, not necessarily.
The houses here involved were sold in 1946 and 1947, prior to the repeal of the Veterans' Emergency Housing Act of 1946, supra, by the terms of the Housing and Rent Act of 1947. Said repeal became effective on June 30, 1947.
Plaintiff's beneficiaries purchased in the following order:
Lawrence J. Polubinsky November 7, 1946; John B. Stepan November 16, 1946; Arthur Wiegand December 8, 1946; Raymond P. McFadden March 3, 1947; James T. Masterson March 25, 1947; Robert M. Wallin April 2, 1947.
61 Stat. 193, 50 U.S.C.A.Appendix, § 1881 et seq.
Defendant admits certain omissions and substitutions, but contends the changes or alterations arising thereoutof improved the construction and increased the value of the completed house in each case. There is much to be said in support of defendant's contention. This would appear from the quoted testimony, supra.
Plaintiff's evidence in support of its claim for monetary allowance and restitution for the claimed deficiencies is neither satisfactory nor persuasive.
It is obvious from the record of this case that a balancing of equities can result only in judgment for the defendant. The plaintiff has failed to show that the defendant, in building the houses, has not substantially complied with the contracts, taking into account all of their ambiguous provisions.
The position of the government, according to the testimony of plaintiff's architect, is apparently based on a supposition that the houses may not have been "exactly built according to plans and specifications." But this witness further testified, in speaking of substitutions, "I personally don't see much detriment to anybody on either side of this thing."
Plaintiff permitted three years to elapse after the sale of the houses before instituting this proceeding. The relief sought is governed by the applicable Housing Act, a war measure requiring prompt enforcement. Plaintiff is guilty of laches and has failed to exercise sound discretion. I am of the opinion that the claim for restitution should be denied.
Defendant may submit findings of fact, conclusions of law and order for judgment, together with form of judgment consistent with the foregoing, and without costs or disbursements.
An exception is allowed plaintiff.