
    BOWLES, Acting Administrator, Office of Price Administration, v. BISSINGER & CO.
    No. 22816-G.
    District Court, N. D. California, S. D.
    May 2, 1944.
    John A. Dundas, of Los Angeles, Cal., and Myer C. Symonds and Doris B. Marasse, both of San Francisco, Cal., for plaintiff.
    Sidney M. Ehrman, F. M. McAuliffe, L. C. Baker, and Heller, Ehrman, White & McAuliffe, all of San Francisco, Cal., for defendants.
   GOODMAN, District Judge.

To the complaint for treble damages filed by plaintiff, pursuant to § 205(e) of the Emergency Price Control Act of 1942, Pub.Law 421, 77th Congress, 2nd Sess., 56 Stat. 23, 50 U.S.C.A. Appendix, § 925(e), defendant, by its answer, pleaded nine separate special defenses. Plaintiff moves to dismiss and strike the second, fifth, sixth, seventh, eighth, ninth and tenth special defenses. The fifth and sixth defenses question the validity of the regulations and price schedules issued by the plaintiff. Under § 204(d) of the Act, this Court lacks jurisdiction of this issue. The seventh special defense is in the nature of a general demurrer. The eighth, ninth and tenth defenses urge the unconstitutionality of the Emergency Price Control Act. The Supreme Court has decided adversely to defendant’s contention. Yakus v. United States (Rottenberg v. United States), 64 S.Ct. 660; Bowles v. Willingham, 64 S.Ct. 641.

The motion to dismiss and strike the fifth, sixth, seventh, eighth, ninth and tenth defenses is granted.

The second special defense pleads estoppel on the part of plaintiff to maintain this action. The Court is of the opinion that the second special defense is not so rigid and inclusive as to preclude resort to evidence. “The Court should have open to it a wider vista than presented to it within the four corners of the pleading” before determining the important question as to whether the defendant should be shut off from presenting the second special defense. Montgomery Ward & Co. v. Schumacher, D.C.Cal., 3 F.R.D. 368; Kaus v. Huston, D.C., 35 F.Supp. 327.

Rule 12(d) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, authorizes the Court in the case of motions to dismiss and similar pleadings to defer hearing and determination thereof until the time of trial. In the interests of justice, decision with respect to the sufficiency and materiality of the second special defense pleaded by the defendant should not be made in this case solely upon the basis of the language of the pleading.

The motion to dismiss and strike the second special defense is denied without prejudice to its renewal at the time of trial at which time the materiality of both the pleading and the evidence offered in support thereof may be justly and fairly adjudicated.  