Revere Copper & Brass v. Economy Sales Company

• Decision Date: 16 July 1954
• Docket Number: Civ. A. No. 4929.
• Citation: 127 F. Supp. 739
• Court: U.S. District Court — District of Connecticut
• Parties: REVERE COPPER & BRASS, Inc. Plaintiff, v. The ECONOMY SALES COMPANY, Defendant.

127 F. Supp. 739

REVERE COPPER & BRASS, Inc. Plaintiff, v. The ECONOMY SALES COMPANY, Defendant.

Civ. A. No. 4929.

United States District Court, D. Connecticut.

July 16, 1954.

John H. Filer of Gumbart, Corbin, Tyler & Cooper, New Haven, Conn., for plaintiff.

Arthur S. Sachs (of Sachs, Sachs & Sachs), New Haven, Conn., for defendant.

SMITH, Chief Judge.

This is a motion by plaintiff seeking a temporary injunction restraining defendant from selling goods manufactured and trademarked by plaintiff at less than the price stipulated in an alleged fair trade contract between plaintiff and Olds and Whipple, Inc., a Hartford retailer.

Findings of Fact

1. The plaintiff is a corporation incorporated under the laws of the State of Maryland and the defendant is a corporation incorporated under the laws of the State of Connecticut.

2. The matter in controversy exceeds, exclusive of interest and costs, the sum of $3,000.

3. The plaintiff is engaged in the business of manufacturing and selling kitchen appliances which bear the plaintiff's tradename "Revere Ware" and they are in free and open competition in this State

with other appliances of the same general class produced and distributed by others.

4. The plaintiff has entered into contracts with retail dealers in Connecticut establishing minimum retail prices for its appliances.

5. On December 21, 1953, the plaintiff notified the defendant of its establishment of minimum retail prices.

6. On January 5, 1954, February 9, 1954, April 9, 1954 and May 3, 1954, the defendant offered for sale and sold at retail appliances of the defendant below the minimum retail prices established therefor and these sales were not for the bona fide purpose of discontinuing dealing in plaintiff's appliances; nor were the trademarks and brand name of such appliances removed or obliterated; and said appliances were not secondhand, damaged, defaced or deteriorated.

7. The defendant has within the past two weeks offered plaintiff's appliances for sale at less than the minimum retail price and has not notified the plaintiff in writing of its intention to close out its stock of the plaintiff's appliances nor given the plaintiff a reasonable opportunity to purchase such stock at the original invoice price.

8. The continuance by the defendant of advertising, offering to sell and selling the plaintiff's appliances at less than the minimum retail price will cause irreparable damage to the plaintiff and will tend to destroy the value of its goodwill and tradename.

9. Unless it is enjoined the defendant will continue to so advertise, offer to sell and sell the plaintiff's appliances.

Conclusions of Law

1. The Court has jurisdiction over the parties and the subject matter of this action.

2. The selling, offering to sell and advertising by the defendant of the plaintiff's appliances at less than the minimum retail prices established by the plaintiff is unlawful and actionable under Section 6713 of the Connecticut General Statutes.

3. A temporary injunction should issue pending the determination of this action.

Discussion

Plaintiff seeks a temporary injunction under the Connecticut Fair Trade Act; Connecticut General Statutes Section 6708 et seq., Revision of 1949, as sanctioned by the McGuire Act, 15 U.S.C.A. § 45 and note. Absent the latter federal legislation, resale price maintenance contracts are unenforceable against non-signers because in violation of the Sherman Antitrust Act, 15 U.S.C. A. §§ 1-7, 15 note; Schwegmann Bros. v. Calvert Distillers Corp., 1951, 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035. Defendant opposes this motion on various bases. Plaintiff appears to have made out a prima facie case for injunction.

Although applications for preliminary injunctions are frequently refused where the right is doubtful because of disputed questions of fact or law, it is noted that even if there is such a conflict, if plaintiff shows an irreparable injury will be suffered prior to the final hearing, that there is a reasonable probability that the facts will be established as he alleges and that the injunction will not cause great injury to the defendant, a preliminary injunction may issue.

The question presented is whether the defenses raise any valid issues that present a dispute to be considered only in a final hearing.

(1) Should plaintiff's motion be denied because it has not proven irreparable injury? Generally today, if a plaintiff comes within the purview of the Fair Trade Act, then violations and the threat of continued violations entitle him to injunctive relief. Burroughs Wellcome & Co. v. Johnson Wholesale Perfume Co., 1942, 128 Conn. 596, 24 A.2d 841, 845. In an action for an injunction forbidding the defendant from selling the plaintiff's products at cut rate prices, defendant contended that since only slight monetary damage had been shown, the injury was not irreparable and there was no basis for injunctive relief. The court in granting the injunction stated:

"`Whether damages are to be viewed by a court of equity as "irreparable" or not depends more upon the nature of the right which is injuriously affected than upon the pecuniary measure of the loss suffered.' * * * The basis for injunctive relief in such a case as this is not past violations but threatened future ones."

This would appear to coincide with the general doctrine in injunctive relief cases. Plaintiff here has alleged the threatened future violations, and since the McGuire Act re-establishes the 1942 Connecticut case as good law over the body of Schwegmann, plaintiff satisfies the requisite irreparable injury aspect.

The case cited by defendant in CCH Trade Cases, Ditchek v. Weiss, 1949, 121 N.Y.L.J.1892, appears to be based on the proposition that "the violation of the Fair Trade contracts is the rule rather than the exception in the vicinity." If such an assertion could be proven, no damage either past or future could be shown. Unless we construe the evidence of defendant's witness who bought Revere Ware at less than the minimum retail price in several area stores to constitute abandonment of its policy by plaintiff, then the injunction should not be denied.

(2) The second contention made by defendant is that plaintiff's motion should be denied because plaintiff has not been diligent in policing its price structures. This argument is based on the testimony of defendant's...