Bristol-myers Co. v. Webb's Cut Rate Drug Co., Inc.
| Decision Date | 14 April 1939 |
| Parties | BRISTOL-MYERS CO. v. WEBB'S CUT RATE DRUG CO., Inc. |
| Court | Florida Supreme Court |
Rehearing Denied May 2, 1939.
En Banc.
Proceeding by the Bristol-Myers Company against Webb's Cut Rate Drug Company, Inc., to enjoin violations of fair trade contract. From an order dismissing the bill of complaint, the Bristol-Myers Company appeals.
Affirmed. Appeal from Circuit Court, Pinellas County; T Frank Hobson, judge.
Robert H. Givens, Jr., of Miami, for appellant.
Bussey, Mann & Barton, of St. Petersburg, for appellee.
This is an appeal from an order granting a motion to dismiss the bill of complaint which was filed in the lower court by the appellant here. The case turns upon the validity of Section 6 of Chapter 18395, Acts of 1937, that is, whether said section comes within the scope of the title, under Sec. 16 of Art. 3 of the Constitution.
The appellant exhibited its bill of complaint against the appellee, Webb's Cut Rate Drug Co., Inc., seeking to enjoin appellee from further alleged violations of a certain so-called 'fair trade contract' executed by the appellant and certain retailers of drugs in the State of Florida, other than the appellee, the release sought being based upon certain provisions of Chapter 18395 of the Acts of 1937, the title of which reads:
'An Act to Protect Trade-Mark Owners, Producers, Distributors and the General Public Against Injurious and Uneconomic Practices in the Distribution of Competitive Commodities Bearing a Distinguishing Trade-Mark, Brand or Name, Through the Use of Voluntary Contracts Establishing Minimum Resale Prices and Providing For Refusal to Sell Unless Such Minimum Resale Prices Arc Observed.'
It was alleged that the appellant, a manufacturer of drugs, pursuant to the provisions of said Act, entered into retail sales contracts with a large majority of the retailers in the State of Florida who handled the products of appellant which bear appellant's trade-marks; that in and by said contracts the retailers agreed they would not, directly or indirectly advertise, offer for sale or sell, within the State of Florida, certain products of the appellant bearing appellant's trade-marks, at prices less than those specified in said contracts, all of which were uniform.
It was further alleged that while the appellee, a retailer, had never entered into nor executed any of such contracts, the appellee nevertheless was informed of the existence and of the terms and provisions of such contracts and particularly the provision relating to minimum retail prices, but that notwithstanding said contract and the repeated protests of appellant against violation of same, the appellee advertised and offered for sale certain of said commodities at prices less than the minimum prices specified in said contracts, said certain commodities, being, Ipana Tooth Paste and Sal Hepatica.
The bill further alleged that the continuance of such violations was producing great and irreparable injury to the appellant and the retailers in the State of Florida upon whom the appellant must depend for the distribution and sale of its products in this State, and was damaging to the goodwill of the commodities in question and was causing the appellant the loss of sales. The bill ended with a prayer for an injunction against further violations by the appellee, basing such prayer upon Sec. 6 of said Act, which reads:
'Section 6, Willfully and knowingly advertising, offering for sale [or] selling any commodity at less than the price stipulated in any contract entered into pursuant to the provisions of this Act, whether the person so advertising, offering for sale or selling is or is not a party to such contract, is unfair competition and is actionable at the suit of any person damaged thereby.'
In his order dismissing the bill, Circuit Judge Hobson held that the inclusion in the title of the expression 'Through the Use of Voluntary Contracts Establishing Minimum Resale Prices and Providing For Refusal to Sell Unless Such Minimum Resale Prices Are Observed,' restricts the subject of the act and implies that its provisions will be applicable only to retailers who voluntarily enter into such contracts, and not to retailers who refrain from doing so; that because of this implication the title is misleading and that Sec. 6 is therefore invalid and not within the scope of the title of the Act under Section 16 of Article 3 of our State Constitution.
We concur in this holding of the Chancellor on this, the only constitutional question raised in the case. None other is considered.
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