Com. v. Strauss

• Decision Date: 19 May 1905
• Parties: COMMONWEALTH v. STRAUSS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

188 Mass. 229

74 N.E. 308

COMMONWEALTH v. STRAUSS.

Supreme Judicial Court of Massachusetts, Plymouth.

May 19, 1905

COUNSEL

Asa P. French, Dist. Atty., and Jas. S. Allen, Jr. for the commonwealth.

F. M Bixby and Junius Parker, for defendant.

OPINION

KNOWLTON, C.J.

Section 1 of chapter 56 of the Revised Laws is as follows: 'A person, firm, corporation, or association of persons doing business in this commonwealth, shall not make it a condition of the sale of goods, wares or merchandise, that the purchaser shall not sell or deal in the goods, wares or merchandise of any other person, firm, corporation or association of persons; but the provisions of this section shall not prohibit the appointment of agents or sole agents for the sale of, nor the making of contracts for the exclusive sale of goods, wares or merchandise. Whoever, as principal or agent, violates the provisions of this section shall be punished for the first offense by a fine of not less than fifty nor more than one hundred dollars, and for each succeeding offense by a fine of not less than one hundred nor more than five hundred dollars, or by imprisonment for not more than one year, or by both such fine and imprisonment.' An indictment was found against the defendant under this section, charging him, in five counts for as many different offenses, with having made it a condition of the sale of certain merchandise, to wit, the plug tobaccos of the Continental Tobacco Company, that the purchaser should not sell or deliver any of certain merchandise, to wit, the plug tobaccos of any other person, firm, or corporation, or association of persons, etc. The defendant was a salesman employed by the Continental Tobacco Company to solicit orders from purchasers, and forward them to the office of his employer, in New York City, to be filled. The evidence tended to show that he sold tobacco to the persons mentioned in the indictment as purchasers, at list prices, agreeing to give them a trade discount of 2 per cent., and, if the bill was paid within 10 days, a further cash discount of 2 per cent., and, if they handled the plug tobaccos of the Continental Tobacco Company exclusively (that is, handled and dealt in no plug tobacco made by any manufacturer other than the Continental Tobacco Company), to give them at the expiration of a stated period a further amount, equal to 6 per cent. of the amount of their purchases during such period. The defendant introduced no evidence. Various requests for instructions to the jury were made by the defendant, which we need not consider in detail. The presiding justice refused these requests, and, subject to the defendant's exception, instructed the jury as follows: 'Upon all the evidence, if you are satisfied that the defendant, acting for the Continental Tobacco Company, offered for sale to the person or concern named in either count of the indictment the plug tobacco made by the Continental Tobacco Company upon more favorable terms if such person or concern should not sell or deal in the plug tobacco of any other person, firm, corporation, or association of persons, it will be your duty to find the defendant...