• This is an appeal from a judgment for the defendants in an action for damages and restitution brought by the Housing Expediter under the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A. Appendix, § 901 et seq. Numerous affidavits, requests for admissions and interrogatories were filed by both parties, culminating in a motion for summary judgment by each, — that of the defendants being granted.
The complaint alleges overcharges of rent by the defendants as landlords of two tenements in Peabody, Massachusetts, in the Essex 'County Defense-Rental Area.
The case turns on the answer to the question as to what was the legal rent for the properties in the critical rent month,— March, 1942.
Section 4 of the applicable rent regulation (8 F.R. 7322, incorporating the provisions of 7 F.R. 8596) provides that “Maximum rents (unless and until changed by the Administrator * * *) shall be: (a) For housing accommodátions rented on the maximum rent date [March 1, 1942], the rent for such accommodations on that date.”
Section 13(a) (10) of the Regulations provides that “ ‘Rent’ means the consideration, including any bonus, benefit, or gratuity, demanded or received for the use or occupancy of housing accommodations * *
“* * .* in any litigation where the point becomes relevant the rent which was actually being charged on the freeze date must be factually determined.” Kalwar v. McKinnon, 1 Cir., 1945, 152 F.2d 263, 264.
On the critical date the properties were occupied by tenants under written leases which provided for the payment of rent in monthly payments together with taxes to be paid by the tenants. The landlord’s registration, later filed, contained similar statements. No change in the rents was made by the Administrator.
The plaintiff alleged, with supporting affidavits from tenants, that the defendant owners did not demand or receive, as part of the rentals for either of the houses,— payment of taxes for a period prior to 1946 including 1942. The defendants on the other hand alleged that the taxes were paid by the tenants.
The plaintiff claims that the dispute between the defendants and their tenants on this point raised a genuine issue' of material fact, pending the settlement of *181which, a summary judgment was not authorized .by Federal Rules of Civil Procedure, rule 56, 28 U.S.C.A. An examination of the record, however, fails to support that claim.
The assertions of' fact, made by the tenants in affidavits to the effect, merely, that the taxes they had agreed to pay had not been paid, nor demanded of them, would not be sufficient, even if supported by evidence, to effect a change in the written contracts. No waiver of the terms of the leases was alleged, — one of the tenants expressly stating that he occupied under the terms of his lease, — and the other not mentioning it.
The assertion (denied by the defendants) to the effect that the landlords did not collect the whole rent reserved in the leases, does not raise an issue of material fact. Presumably the landlords were charging for rent the amounts agreed upon and specified in the leases, whether collected or not.
In the absence of any showing of a different agreement or consent on the part of the landlords to a reduction in rent, or of any intentional change, in the amount of rent charged, or of any change by the Administrator, the landlords were entitled to rest on the presumption that the leases were continuing without change. They were not obliged at their peril to collect all the rent due them.
The judgment of the District Court is affirmed.