(concurring in
part and dissenting in part).
The testimony is undisputed that the Appellee paid around $1,200 for the furniture that she sold to the tenant for $1,000 and that it was worth the price that she obtained. I agree that there was sufficient evidence to raise the issue as to whether or not there was a tie-in agreement for the purchase of the furniture, but it is my view that even though there was such a tie-in agreement, nevertheless, restitution cannot be had in this case for the amount paid for the furniture if it was worth the price paid, and if the tenant was not obligated 'to return or redeliver the furniture to the landlord, and the questions as to whether or not the tenant abandoned the furniture or whether he left it in the apartment in conformity with the alleged tie-in agreement are questions of fact. If the furniture was worth the price paid, and if the alleged tie-in agreement did not require tenant to redeliver or return the furniture to the landlord, and he merely abandoned it or left it in the apartment in order that suit for its purchase price might be thereby advanced or aided, a recovery of the entire purchase price by the tenant should not be allowed. He should not have his cake and eat it, too.
The right of restitution is derived from the tenant, and if it would be inequitable for the tenant to have restitution, it would be inequitable for the Expediter to secure restitution to the tenant. See Porter v. Warner Holding Company, 328 U.S. 395, text 402, 66 S.Ct. 1086, 1091, 90 L.Ed. 1332, wherein the Court said that the Administrator asks the court to act in the public interest by restoring the status quo “and ordering the return of that which rightfully belongs to the purchaser or tenant.” So, if the right to have restitution, and at the same time to keep furniture, does *56not rightfully belong to the tenant, such right should not be accorded in a proceeding for restitution under Sec. 205(a) of the Act.
Moreover, restitution of any rental overcharge, as represented in this case by the alleged tie-in agreement for the purchase of the furniture, is a proceeding under Sec. 205(a), Sec. 925(a) of Title 50, U.S.C.A. Appendix, and is an entirely equitable proceeding, to be decided by the judge and not by the jury. See Porter v. Warner Co., 328 U.S. 395, 66 S.Ct. 1086, 1090, 90 L.Ed. 1332, wherein the Court, speaking of restitution, said:
“ * * * To the extent that damages might properly be awarded by a court of equity in the exercise of its jurisdiction under § 205(a), * * * § 205(e) supersedes that possibility and provides cm exclusive remedy relative to damages. It establishes the sole means whereby individuals may assert their private right to damages and whereby the Administrator on behalf of the United States may seek damages in the nature of penalties. Moreover, a court giving relief under § 205(e) acts as a court of law rather than as a court of equity. But with the exception of damages, § 205(e) in no way conflicts with the jurisdiction of equity courts under § 205 (a) to issue whatever ‘other order’ may be necessary to vindicate the public interest, * * *
“Restitution, which lies within that equitable jurisdiction, is consistent with and differs greatly from the damages and penalties which may be awarded under § 205(e). Bowles v. Skaggs, supra, 6 Cir., 151 F.2d [817], 821. When the Administrator seeks restitution under § 205(a) he does not request the court to award statutory damages to the purchaser or tenant or to pay to such person part of the penaities which go to the United States Treasury in a siút by the Administrator under § 205 (e).“ (Emphasis added.)
The verdict of the jury was, under Rule 39(c), Federal Rules of Civil Procedure, 28 U.S.C.A. purely advisory and not binding on the judge1 in the absence of a stipulation on the part of counsel for both parties that the issues should be tried hv a jury.
The question as to the right of the tenant to restitution of the amount paid for the furniture being an equitable one for the court and not for the jury, it was not reversible error to decline to submit that phase of the case to the jury.
I agree that in a proceeding under Sec. 205(e) for triple damages to the plaintiff, a trial by jury was proper. I concur in the view of the majority that questions of fact were raised as to the overcharge and as to the allegation that the sale of the furniture was a tie-in sale. Whether the question of fact as to the existence of *57overcharge is one for the jury or one for the court depends upon whether the proceeding is under 205(e) for triple damages, in which the question would be one for a jury to determine, or whether it is an equitable proceeding for restitution under 205(a), when it would be a question for the judge. The question of whether restitution should be allowed under 205(a) is at all times one for the court except when both parties consent to a trial by jury under Rule 39(c), F.R.C.P.
See Kohn v. McNulta, 147 U.S. 238, text 240, 13 S.Ct. 298, 37 L.Ed. 150, wherein the Court said:
“So far as the mere matter of procedure is concerned, there was obviously no error. The intervention was a proceeding in a court of equity, and that court may direct a verdict by a jury upon any single fact, or upon all the matters in dispute. But such verdict is not binding upon the judgment of the court; it is advisory simply, and the court may disregard it entirely, or adopt it either partially or in toto. Barton v. Barbour, 104 U.S. 126 [26 L.Ed. 672]; 2 Daniell’s Chancery Pl. and Pr., 5th Ed. 1148, and cases cited in note; [Idaho & Oregon Land] Improvement Co. v. Bradbury, 132 U.S. 509, 516, 10 S.Ct. 177, 179 [33 L. Ed. 433], and cases cited.”
See also Perkins v. Prudential Ins. Co. of America, 7 Cir., 69 F.2d 218, text 221, on petition for rehearing, wherein the Court said:
“Appellant in her petition for rehearing again urges error in the action of the District Court in discharging the jury without permitting it to determine the issues of fact. There was no error in this. The action was in a court of equity where it is a matter of discretion as to whether a jury will be used at all. Idaho & Oregon Land Improvement Co. v. Bradbury, 132 U.S. 509, 10 S.Ct. 177, 33 L.Ed. 433. Even if the court does submit the issues to the jury, the verdict is not binding upon the court, and may be followed or disregarded in the discretion of the court. Kohn v. McNulta, 147 U.S. 238, 13 S.Ct. 298, 37 L.Ed. 150. Hence it must follow that even if a jury is permitted to hear the evidence it is not mandatory upon the court to submit the case to that jury if after hearing the evidence it chooses not to do so.”