I dissent.
The issue in this case is whether a used automobile was sold for a price in excess of that fixed by the Office of Price Administration. It is said in the majority opinion that the car was sold under a conditional sales contract for a total sale price of $3,077.12, consisting of a down payment of $766.67 and 15 *711monthly installments of $154.03 each. It is conceded that that sale price is above the O.P.A. ceiling price. It is claimed, however, that such price cannot be said to be excessive because the sale was on time rather than for cash, unless the seller charged more interest and carrying charges than had been his custom and usage prior to the effective date of the price regulation authorized by the Emergency Price Control Law (50 U.S.C.A. App., §§ 901 et seq.). The majority holds, by assumption, and without discussion, that the burden of proving the prior usage with relation to such charges rested upon the buyer rather than the seller. This assumption is based on fundamental fallacies.
It was prima facie a violation of the O.P.A. ceiling price regulation to sell for an excessive price whether the sale was by contract on time or for cash. There is nothing in the Emergency Price Control Law (50 U.S.C.A. App., §§ 901 et seq.) to the contrary and the regulation promulgated by the Office of Price Administration (Regulation 540) includes both kinds of sales. In that regulation it is first recited that the ‘ ‘ prices ’ ’ for used cars shall be as set forth in the annexed schedule. It is declared that said regulation applies to “all sales by dealers and other persons of used passenger automobiles” (reg., art. I, §1). [Emphasis added.] And that “No person shall sell or deliver any used ear at a price higher than the maximum price permitted by this regulation” (Art. I, § 2(1)). A sale “includes sales, dispositions, exchanges, and other transfers and contracts and offers to do any of the foregoing. It includes conditional sales and sales under rental contracts, lease agreements or other agreements.” (Art. I, § 15(c).) [Emphasis added.] It follows, therefore, that a conditional sale for an over-ceiling price, which is the situation we have here, is prima facie a violation of the regulation. The only indication that there is any relaxation from the foregoing provisions appears in the section on “evasions” listing specific prohibitions in addition to selling at a price above that fixed by the regulation. This section provides that it is a violation of the regulation to charge a price above the maximum, and that the “seller is prohibited from providing for purchase of the used car by a lessee under a rental contract at an agreed valuation which together with the amount paid for the rental is higher than the applicable maximum price at the time the rental contract is entered into, and from the making the terms and conditions of sale more onerous to purchasers than they have customarily been except to the extent allowed by this regula*712tion.” (Art. I, § 9.) The regulation makes no provision authorizing the seller to add carrying charges to the maximum sale price when the sale is made on time under a conditional sales contract or otherwise. From all that appears in the conditional sales contract here involved, the price quoted is the sale price of the car, nothing is said about any other charges. There is no basis for assuming that any such charges, if made, are the same as the seller previously made. How then can it possibly be said that the buyer did not prove enough when he established that there was a sale, the amount of the sale price, and that such price was over the ceiling? If the seller had any justification for the prima facie overcharge he had the burden of showing it.
It should be remembered that the Emergency Price Control Law must be liberally construed to effectuate its remedial purposes. (Automatic Fire Alarm Co. v. Bowles, 143 F.2d 602; Bowles v. Sago, 65 F.Supp. 178; Pfalzgrap v. Voso, 184 Misc. 575 [55 N.Y.S.2d 171]; Bowles v. Haymond, 59 F.Supp. 482.) In furtherance of that policy it has been held that the seller has the burden of proving that his overcharge was not wilful and not the result of failure to take practicable precautions (Duffy v. Howell, 73 Cal.App.2d Supp. 990 [166 P.2d 411]; Monahan v. Jacbos & Politi, 187 Misc. 332 [66 N.Y.S.2d 207]; that he sold a different variety of the product for the year involved (Bowles v. Chamberlain, 65 F.Supp. 245), and that he had a ceiling price different than other manufacturers (Bowles v. Leventhal, 61 F.Supp. 144). These rules are in harmony with the general principle that the burden of proof rests upon the one who is in a superior position to bear it. (31 C.J.S., Evidence, § 113.)
Obviously the seller was in a superior position to prove what his practices were before the advent of price regulation. Apparently in the instant ease the defendant seller attempted to prove that factor and the plaintiff buyer agreed that he should but the court erroneously refused to permit it.
It is asserted that the plaintiff purchased the car for use in her business and thus the sale was excepted from the price regulation. I am satisfied with the discussion of that subject in the decision of the District Court of Appeal in this case which held the evidence was insufficient to establish that defense. (Heesy v. Vaughn (Cal.App), 183 P.2d 942.)
The majority opinion holds that the buyer’s (plaintiff’s) sole theory for recovery was that the sale was for cash and not on a conditional sale contract, and that she cannot now *713change her position. The obvious answer to that holding is that the seller-defendant squarely put the conditional sale contract in issue and relied thereon, and, as seen from the foregoing discussion, the case made thereon was a prima facie violation of the price control law. In other words, defendant proved plaintiff’s case, thus he could not be injured by any alleged change of theory on the part of plaintiff. It is difficult to see how that argument justifies a holding that plaintiff is bound by her theory of the ease, when such a holding will permit defendant to evade the provisions of the price control act and result in a miscarriage of justice.
For the foregoing reasons I would reverse the judgment and remand the cause for a new trial.