5 Cal.2d 784, 14954, Pyroil Sales Co., Inc. v. Pep Boys, Manny, Moe & Jack of California

Docket Nº:14954
Citation:5 Cal.2d 784, 55 P.2d 194
Party Name:Pyroil Sales Co., Inc. v. Pep Boys, Manny, Moe & Jack of California
Attorney:[7] John C. Mead for Appellant. [8] Travers, Landels, Weigel & Crocker, Stanley A. Weigel and George N. Crocker, as Amici Curiae on Behalf of Appellant. [9] Loeb, Walter & Loeb and H. F. Selvin for Respondent.
Case Date:February 28, 1936
Court:Supreme Court of California
 
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Page 784

5 Cal.2d 784

55 P.2d 194

PYROIL SALES COMPANY, INC. (a Corporation), Appellant,

v.

THE PEP BOYS, MANNY, MOE & JACK OF CALIFORNIA (a Corporation), Respondent.

L. A. No. 14954.

Supreme Court of California

February 28, 1936

In Bank.

COUNSEL

John C. Mead for Appellant. Travers, Landels, Weigel &amp Crocker, Stanley A. Weigel and George N. Crocker, as Amici Curiae on Behalf of Appellant. Loeb, Walter &amp Loeb and H. F. Selvin for Respondent.

OPINION OF THE COURT

Memorandum

THE COURT.

By stipulation of counsel and order of court, the above-entitled cause was ordered submitted, and to be decided concurrently with Max Factor & Co. et al. v. Kunsman, L. A. No. 14662 (ante, p. 446 [55 P.2d 177]), decision in which cause has been this day filed.

The appeal here, as in the Factor case, is by the plaintiff from a judgment of dismissal entered after demurrer to the complaint sustained without leave to amend. Although not as extensive in its allegations as the complaint in the Factor case, the complaint is sufficient to raise the same general question of the constitutionality of the 1933 amendment to the "Fair Trade Act" (Stats. 1931, p. 583; Stats. 1933, p. 793). Plaintiff herein seeks an injunction pursuant to the provisions of the act, restraining the defendants from selling Pyroil, a branded and trade-marked article, at retail prices lower than those sought to be maintained by the plaintiff. As in the Factor case, defendants have not bound themselves by any

Page 785

form of contract to resell the commodity at any specified price, but an obligation to so resell is sought by the plaintiff to be imposed on defendants (by the application of section 1 1/2 of the Fair Trade Act--amendment of 1933) by virtue of the fact that other dealers have agreed with plaintiff not to resell at less than...

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