Bathasweet Corp. v. Weissbard
| Decision Date | 30 September 1940 |
| Citation | 15 A.2d 337,128 N.J.Eq. 135 |
| Parties | BATHASWEET CORPORATION v. WEISSBARD et al. |
| Court | New Jersey Court of Chancery |
Syllabus by the Court.
1. In a suit by a producer under the Fair Trade Act, only the minimum price provisions of contracts made with retailers are binding on those retailers who have not signed such contracts.
2. When a producer operating under the Fair Trade Act combines two trade-marked articles into a combination package for resale at a price less than the aggregate price of the articles if sold separately and independent of the combination, he has abandoned his price structure under the statute as to those items which have been combined.
Suit by the Bathasweet Corporation against Harry Weissbard and Max Weissbard, partners, trading under the name and style of Weissbard Bros., to enjoin defendants from selling products of complainant at less than minimum resale prices fixed by complainant under the Fair Trade Act. On application for preliminary injunction.
Application denied.
Lorentz & Stamler and Joseph H. Stamler, all of Newark, for complainant.
Bilder, Bilder & Kaufman, and Samuel Kaufman, all of Newark, for defendants.
STEIN, Vice Chancellor.
This matter is before the court on the return of an order to show cause why a preliminary injunction should not issue enjoining the defendants from selling the products of the complainant at less than the minimum resale prices fixed by the complainant under R.S. 56:4-3 et seq., N.J. S.A. 56:4-3 et seq., commonly called the Fair Trade Act.
The complainant, Bathasweet Corporation, is a producer and distributor of toilet articles extensively sold and distributed under a distinctive trademark. The products of the complainant have been widely advertised and it has established a valuable good will in connection with its business and the trademark under which its products are sold and distributed. In accordance with the statute, the complainant, in May 1938, fixed and established minimum prices for the resale of its products. Until about October of that year retailers generally, including the defendants, observed the resale prices in the sale of complainant's products to the public.
The defendants operate retail drug stores in the City of Newark. The complainant charges, and the defendants admit, that they are now selling complainant's product Bathasweet at less than the price fixed by the complainant pursuant to its contract. The defendants allege, however, that the complainant has abandoned the fair trade price structure theretofore established and that they are no longer required to observe complainant's minimum resale prices. The defendants did not sign a contract with the complainant and they were therefore bound by the statute to observe only those provisions of the complainant's contracts with other retailers which fix the minimum resale prices. No other contract terms are binding on non-signatory retailers.
There is no material factual dispute. Although all of the facts do not appear in the bill of complaint, the complainant now concedes the truth of the matters presented in the defendant's affidavit. Since these generally relate to correspondence passing between counsel for the respective parties and various advertisements and notices issued by the complainant, their genuineness was not and could not be questioned. The only issue, therefore, is one of law.
There was no price cutting by the defendants on the complainant's products until the complainant put upon the market a so-called "1938 Bonus Package" consisting of Bathasweet which had been previously price fixed by the complainant at 83(5 and another article also produced by the complainant. The resale price of the bonus package was also fixed by the complainant at 83? The defendants assert that they could not sell the Bathasweet which they had purchased for resale independent of the bonus package, since the combination contained an additional item which the complainant was in effect giving away without further cost to the consumer.
In February 1939, the complainant again marketed a combination package consisting of the regular $1 size of Bathasweet and the regular 35?size of Bathasweet Soap, the combination package to be sold to the public for 98? It had previously fixed a minimum resale price of 83?for Bathasweet and 29(5 for the soap. There was thus a difference of 14(5 between the price of the combination and the aggregate price of both articles if sold independently. In view of the combination, the defendants and other retailers sold the individual items at less than their respective resale prices and the defendants so informed the complainant. Nothing was done by the complainant to enforce its price...
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Eastman Kodak Company v. Home Utilities Company
...practice if it had been proved (see Magazine Repeating Razor Co. v. Weissbard, 1939, 125 N.J. Eq. 593, 7 A.2d 411; Bathasweet Corp. v. Weissbard, 128 N.J.Eq. 135, 15 A.2d 337), the evidence failed satisfactorily to establish the normal retail selling price of some of the non-fair-traded com......
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Eastman Kodak Co. v. Siegel
...at a price less than the aggregate price of the articles if sold separately and independent of the combination. Bathasweet Corp. v. Weissbard, 128 N.J.E.q. 135, 15 A.2d 337; Frank Fischer Merchandising Corp. v. Ritz Drug Co., 129 N.J.Eq. 105, 19 A.2d A contrary result as regards combination......
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Upjohn Company v. VINELAND DISCOUNT HEALTH & VITAMIN CTR.
...593, 7 A.2d 411 (Chanc.1939); or where fair trade articles are combined irrespective of aggregate price, Bathasweet Corp. v. Weissbard, 128 N.J.Eq. 135, 15 A.2d 337 (Chanc.1940); or where only one of the combined articles has a fair trade fixed resale price, Frank Fischer Mdsg. Corp. v. Rit......
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Frank Fischer Merch. Corp. v. Ritz Drug Co.
...for the combination and the individual article. The evils of this practice have already been discussed. Bathasweet Corporation v. Weissbard, 128 N.J.Eq. 135, 15 A.2d 337. This court held that the act of the manufacturer resulted in an abandonment of the minimum resale price which had been f......