HUXMAN, Circuit Judge.
Pursuant to Section 205(e) of the Emergency Price Control Act of 1942, as amended,
The salutary purpose of Rule 56 is to permit speedy and expeditious disposal of cases where the pleadings do not as a matter of fact present any substantial question for determination. Flimsy or transparent charges or allegations are insufficient to sustain a justiciable controversy requiring the submission thereof.
The overcharges set out in the complaint, which are the basis of the trial court's judgment, were the result of calculations and computations taken from appellants' own books and records which they were required to keep under the Act. These records were furnished to appellee for inspection. The correctness and accuracy of these computations were fortified by the affidavits of the two accountants who made the examination of the books and therefrom prepared Exhibit A. The correctness or authenticity of the schedules of Exhibit A were not specifically denied or disputed by appellants' answer. No affidavits were filed challenging the verified statements of the two accountants who prepared the schedules. In the condition of the record, a mere general denial in the answer of the allegations of the complaint was insufficient to place in issue the correctness of the items of the schedules in Exhibit A, and the court was correct in entering summary judgment unless one of the affirmative defenses tendered a substantial issue which would preclude the entry of such a judgment.
The second, third, and sixth defenses are wholly without merit and no further reference will be made to them. In their fourth defense, appellants pleaded the one-year statute of limitations as to certain items which were sold more than one year before the action was instituted. Schedule A, however, shows that all of these items were shipped and delivered less than one year before the action was instituted. Section 4(a) of the Act, 50 Appendix, U.S.C.A. § 904(a), makes it "unlawful * * * to sell or deliver any commodity, or in the course of trade or business to buy or receive any commodity * * * or otherwise to do or omit to do any act, in violation of any regulation or order under section 2, or of any price schedule effective in accordance with the provision of section 206, or of any regulation, order, or requirement under section 202(b) or section 205(f), or to offer, solicit, attempt, or agree to do any of the foregoing." The words "sell and deliver" are not synonymous terms. They have separate and distinct meanings. It must be presumed that Congress used them according to their ordinary and usual accepted meaning and understanding. Otherwise there would have been no need to include them both in the Act. Revised Price Schedule No. 49 forbids, among others, the sale, delivery or transfer of iron or steel in excess of the maximum prices. Under both the provisions of the Act and of Regulation No. 49, the sale or delivery of steel or iron products in excess of maximum prices constitutes separate and distinct violations. The articles having been shipped and delivered within the one year period, the action was timely and the statute of limitations was no defense.
In their fifth defense, appellants sought to invoke the equitable doctrine of
In their seventh defense, appellants urged that they acted in good faith and that good faith was a complete defense to an action for damages in any amount. It is argued that this defense tendered a substantial issue which precluded entry of summary judgment. Section 205(d) of the Act provides that: "No person shall be held liable for damages or penalties * * * on any grounds for or in respect of anything done or omitted to be done in good faith pursuant to any provision of this Act or any regulation, order, price schedule, requirement, or agreement thereunder, or under any price schedule of the Administrator of the Office of Price Administration * * * notwithstanding that subsequently such provision, regulation, order, price schedule, requirement, or agreement may be modified, rescinded, or determined to be invalid." Appellants in their brief concede that the good faith referred to in Section 205(d) of the Act is the same good faith referred to in Section 54 of Revised Procedural Regulation No. 1, wherein it is provided that: "An interpretation rendered by an officer or employee of the Office of Price Administration with respect to any provision of the Act or of any regulation, price schedule, order, requirement, or agreement thereunder will be regarded by the Office of Price Administration as official only if such interpretation was requested and issued in accordance with Section 55 of this regulation. Action taken in reliance upon and in conformity with an official interpretation and prior to any revocation or modification thereof or to any superseding thereof by regulation, order or amendment, shall constitute action in good faith pursuant to the provision of the Act or of the regulation, * * *"
Appellants therefore could urge good faith as a defense only if they followed the law in obtaining the advice upon which they relied. This they failed to do. They did not obtain an official interpretation. At most, they obtained only an oral opinion. It follows as a matter of law that the defense of good faith was not available and that the mere general allegation of good faith in the answer raised no substantial issue of fact.
The only defense which presented any possible factual question for trial was the eighth defense. The substance of this defense was that appellants were not subject to the Price Control Act or the regulations promulgated thereunder because they were not engaged in the purchase and sale of iron and steel products, but were merely acting as the servants of the various concerns with whom they were dealing. Appellants seek support for this position in a letter written by Aircraft Mechanics, Inc., dated February 26, 1943. The letter was written approximately a year after the relations between the parties had been established. It was apparently written for the purpose of clarifying these relations. It is long and detailed, and no attempt will be made to analyze its provisions in detail. It contains many of the elements of a contract of sale and purchase. The court was warranted in concluding that there was a sale