Fournier v. Troianello

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before QUA; WILKINS
• Citation: Fournier v. Troianello, 332 Mass. 636, 127 N.E.2d 167 (Mass. 1955)
• Decision Date: 03 June 1955
• Parties: Louis FOURNIER v. John P. TROIANELLO.

Page 167

127 N.E.2d 167

332 Mass. 636

Louis FOURNIER v. John P. TROIANELLO.

Supreme Judicial Court of Massachusetts, Essex.

Argued May 3, 1955.

Decided June 3, 1955.

John M. Hogan, Boston, Malcolm V. McCabe, Boston, with him, for plaintiff.

Alfred L. Daniels and Vincent C. Manzi, Lawrence, for defendant.

Before QUA, C. J., and WILKINS, SPALDING, WILLIAMS and COUNIHAN, JJ.

WILKINS, Justice.

The plaintiff and the defendant own and operate retail markets in Lawrence. By this bill in equity, brought under the unfair sales act, G.L. (Ter.Ed.) c. 93, §§ 14E-14K, inserted by St.1938, c. 410, § 1, as amended, the plaintiff seeks to restrain the defendant from advertising, offering to sell, or selling certain named standard sized loaves of sliced white bread, seventeen ounces in weight, at less than his cost as defined in section 14E, as amended. From a decree granting injunctive relief, the defendant appealed.

The judge made findings, rulings, and an order for decree. The plaintiff, on April 14 and 15, 1954, and for a considerable period before, owned and operated a retail market at 501 South Broadway, for the sale of groceries and other food products, including 'Betsy Ross' and 'Wonder' brand breads. On the same dates and for a considerable earlier period the defendant's market was at 105 Lawrence Street, for the sale of the same commodities. Their markets were two miles apart. On April 14, 1954, the defendant inserted a full-page advertisement in the Evening Tribune, a newspaper published in Lawrence, reading in part, 'All sliced American Bread Loaf 15 Cents Wonder--Betsy Ross- --liFE--twentiEth centurY--whitehOuse.' on the following day the defendant inserted a similar advertisement in the Lawrence Daily Eagle, a newspaper published in Lawrence. On April 14 and 15, 1954, and for at least thirty days prior thereto, the net invoice price per seventeen-ounce loaf of 'Betsy Ross' and 'Wonder' bread delivered to and paid for by the defendant was seventeen cents a loaf, exclusive of any markups to cover in part the cost of doing business as provided in section 14E. Following the advertisements customers came to the plaintiff's market and asked to buy the same brands at fifteen cents a loat. During the first quarter of 1954 the respective volumes of business done by the plaintiff and by the defendant were $17,500 and $150,000.

The judge ruled that the defendant was offering to sell the said bread at less than cost to him as a retailer within the meaning and intent of c. 93, §§ 14E-14H; and that continuance of such practice could result in irreparable injury to the plaintiff as a seller at retail of similar breads.

The final decree enjoined the defendant (1) from violating the unfair sales act, G.L. (Ter.Ed.) c. 93, §§ 14E-14K by advertising for sale, offering to sell, or selling sliced white bread, bearing the brands 'Betsy Ross' or 'Wonder,' at less than the cost of the said bread to him as a retailer as defined in the act; and (2) from advertising for sale, offering to sell, and selling bread at retail at his market at 105 Lawrence Street or elsewhere in Lawrence, in competition with the plaintiff, at less than the cost thereof to the defendant, in violation of the act.

The unfair sales act was first enacted in this Commonwealth by St.1938, c. 410, § 1, which was entitled, 'An Act defining and prohibiting unfair sales practices, with a view to preventing the advertising or offering for sale or the selling, below cost, of merchandise for the purpose of injuring competitors or destroying competition.' The basic provision is contained in section 14F, as appearing in St.1941, c. 494: 'Any retailer who, with intent to injure competitors or destroy competition, advertises, offers to sell or sells at retail any item of merchandise at less than cost to the retailer [including certain taxes] * * * shall * * * be punished by a fine * * * or by imprisonment * * * or both * * *. Evidence of any advertisement, offer to sell or sale of any item of merchandise by any retailer or wholesaler at less than cost to him [including certain taxes] * * * shall be prima facie evidence of intent to injure competitors or destroy competition.' By section 14E(a), as amended by St.1939, c. 189, § 1, 'The term 'cost to the retailer' shall mean the invoice cost of the merchandise to the retailer within thirty days prior to the date of sale, or the replacement cost of the merchandise to the retailer within thirty days prior to the date of sale, in the quantity last purchased, whichever is lower; less all trade discounts except customary discounts for cash; to which shall be added (1) freight charges not otherwise included in the cost of the merchandise, (2) cartage to the retail outlet if performed or paid for by the retailer, which cartage cost shall be deemed to be three fourths of one per cent of the cost of the merchandise to the retailer, unless said retailer claims and proves a lower cartage cost, and (3) a mark-up to cover in part the cost of doing business, which mark-up, in the absence of proof of a lesser cost, shall be six per cent of the total cost at the retail outlet'. In section 14G certain transactions are excepted from the operation of the act, such as clearance sales, sales of imperfect, damaged, or perishable merchandise, or sales 'where the price of merchandise is made in good faith to meet competition'. By section 14H, 'Upon complaint of any person, the superior court shall have jurisdiction to restrain and enjoin any act forbidden or declared illegal by any provision' of the...