Frankfort Distillers Corporation v. Liberto

• Citation: 230 S.W.2d 971,26 Beeler 478,190 Tenn. 478
• Parties: FRANKFORT DISTILLERS CORPORATION v. LIBERTO et al. 26 Beeler 478, 190 Tenn. 478, 230 S.W.2d 971
• Decision Date: 09 June 1950
• Court: Supreme Court of Tennessee

Page 971

230 S.W.2d 971

FRANKFORT DISTILLERS CORPORATION v. LIBERTO et al.

26 Beeler 478, 190 Tenn. 478, 230 S.W.2d 971

Supreme Court of Tennessee.

June 9, 1950.

Sam P. Walker, Memphis, for appellant.

L. E. Gwinn and William McClanahan, Memphis, for appellees.

PREWITT, Justice.

Complainant appeals from the decree of the Chancellor in this cause sustaining defendants' demurrer and dismissing his bill.

The original bill sought a declaratory judgment as to the applicability of Chapter 58 of the Public Acts of 1937, Fair Trade Act, to the brands, trade-names or trade-marks, of liquors sold in the State of Tennessee, when contracts or agreements pursuant to the Fair Trade Act have been executed and signed between the manufacturer (complainant) and numerous retail liquor dealers in Memphis and elsewhere, covering the price to be charged by those retail dealers for the special brands of liquor manufactured by complainant. The material provisions of the Act in question are as follows:

'An Act to protect trade-mark owners, distributors and the public against injurious and uneconomic practices in the distribution of articles of standard quality under a distinguished trade-mark, brand or name.

'Section 1. Be it enacted by the General Assembly of the State of Tennessee, That no contract relating to the sale or resale of a commodity which bears, or the label or content of which bears, the trade mark, brand, or name of the producer or owner of such commodity and which is in fair and open competition with commodities of the same general class produced by others shall be deemed in violation of any law of the State of Tennessee by reason of any of the following provisions which may be contained in such contract:

'1. That the buyer will not resell such commodity except at the price stipulated by the vendor.

'2. That the vendee or producer require in delivery to whom he may resell such commodity to agree that he will not, in turn, resell except at the price stipulated by such vendor or by such vendee.

'Such provisions in any contract shall be deemed to contain or imply conditions that such commodity may be resold without reference to such agreement in the following cases:

'1. In closing out the owners' stock for the purpose of discontinuing delivering any such commodity.

'2. When the goods are damaged or deteriorated in quality, and notice is given to the public thereof.

'3. By any officer acting under the orders of any court.

'Sec. 1 1/2. Be it further enacted, That wilfully and knowingly advertising, offering for sale or selling any commodity at less than the price stipulated in any contract entered into pursuant to the provision of Section 1 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.

'Sec. 2. Be it further enacted, That this Act shall not apply to any contract or agreement between producers or between wholesalers or between retailers as to sale or resale prices.

'Sec. 3. Be it further enacted, That the following terms, as used in this Act, are hereby defined as follows:

"Producer' means grower, baker, maker, manufacturer or publisher.

"Commodity' means any subject of commerce.'

The bill states that complainant is a nonresident corporation manufacturing three well-known brands of whisky, to wit: Four Roses, Hunter and Paul Jones; that these brands are advertised nationally and locally and sold exclusively in interstate commerce through wholesale dealers or distributors; that these branded products are sold under specific trade-names and are in turn sold by the various distributors to retail liquor dealers in the State, and particularly in the City of Memphis, and by them in turn sold to their customers, that is the public generally.

The bill further states that complainant has entered into numerous Fair Trade contracts with a number of retail dealers under the authority of the above-quoted Act and had established a fixed price for the sale and distribution of each brand; that it is the purpose of these contracts to stabilize the market; that complainant manufactures these brands and advertises them extensively so that they are in open and fair competition with other distillers who are selling in the open market similar products; that complainant is in open and fair competition with all other distillers selling products of the same general class.

The bill charges that defendants were all selling these especially branded bottled products under the prices fixed in the contracts and had announced that they were going to continue this price cutting.

The bill further charges that each one of the defendants was notified of the execution of these various contracts and was given the opportunity to execute a similar contract, which they refused to do, and they, therefore, had violated the terms of the Fair Trade Act.

Defendants demurred to the bill on several grounds, and the points relied on in the demurrer are:

1. The Fair Trade Act is unconstitutional in that it violates Section 22 of Article 1 of the Constitution of Tennessee, and likewise violates Section 5580 of the 1932 Official Code of Tennessee. This provision of the Constitution and this Act both prohibit monopolies in Tennessee.

2. Chapter 58 of the Acts of 1937, Fair Trade Act, is not applicable to the liquor business because the Act was passed when the sale of liquor in Tennessee was illegal and was not made legal until the passage of Chapter 49 of the Acts of 1939.

3. The sale and distribution of liquor is controlled and governed solely and exclusively by Chapter 49 of the Acts of 1939 known as the Local Option Act which is special legislation constituting an entity and so controls the liquor business that general legislation such as the Fair Trade Act was not applicable to liquors that were sold under special brands, trade-names or trade-marks. Said Act is a complete entity and the general laws have no application.

4. The bill seeks to impose on defendants obligations of contracts to which they are not parties.

5. The bill does not set out a cause of action sufficient to warrant the issuance of an injunction.

We think the first contention, that the Fair Trade Act is unconstitutional in that it violates Section 22 of Article 1 of the Constitution of Tennessee prohibiting monopolies, is governed by the following cases: Old Dearborn Distributing Co. v. Seagram-Distillers Corp., 299 U.S. 183, 57 S.Ct. 139, 81 L.Ed. 109, 106 A.L.R. 1476; Ely Lilly & Co. v. Saunders, 216 N.C. 163, 4 S.E.2d 528, 125 A.L.R. 1308; Miles Laboratories v. Owl Drug Co., 67 S.D. 523, 295 N.W. 292; Goldsmith v. Mead Johnson & Co., 176 Md. 682, 7 A.2d 176, 125 A.L.R. 1339; Sears v. Western Thrift Stores of Olympia, 10 Wash.2d 372, 116 P.2d 756; Bourjois Sales Corp. v. Dorfman, 273 N.Y. 167, 7 N.E.2d 30, 110 A.L.R. 1411; Weco Products Co. v. Reed Drug Co., 225 Wis. 474, 274 N.W. 426; Burroughs Wellcome & Co. v. Johnson Wholesale Perfume Co., 128 Conn. 596, 24 A.2d 841.

In City of Memphis v. Memphis Water Co., 52 Tenn. 495, 529, this Court said: 'We know of no better definition of a monopoly, than that given by Lord Coke, and adopted by the Supreme Court in the case of Charles River Bridge v. Proprietors of Warren Bridge, 11 Pet. 420, 9 L.Ed. 773: 'A monopoly is an exclusive right granted to a few, of something which was before of common right--so that it is not a case of monopoly, if the subject had not the common right or liberty before, to do the act, or possess or enjoy the privilege or franchise granted as a common right."

The above case was cited with approval by this Court in the later case of Memphis Power & Light Co. v. City of Memphis, 172 Tenn. 346, 112 S.W.2d 817.

It should be borne in mind that the provisions of the Fair Trade Act in question apply only to commodities produced by the manufacturer bearing his trade-mark, brand or name, and then only if they are in free competition with commodities of the same general class produced or distributed by others. The incidence of the law on trade affects only that portion of the commodity in which the producer has already a lawful monopoly of ownership, and which goes into distribution in a volume that may be fairly measured by the popularity which the good will and identifying name has achieved, but which can never amount to the whole. Ely Lilly & Co. v. Saunders, supra; Old Dearborn Distributing Co. v. Seagram-Distillers Corp., supra; Miles Laboratories v. Owl Drug Co., supra; Sears v. Western Thrift Stores of Olympia, supra; Goldsmith v. Mead Johnson & Co., supra.

It seems that the Fair Trade Acts have been sustained in practically all the states except Florida. The Supreme Court of Florida held the Fair Trade Act of that State invalid in the case of Liquor Store v. Continental Distilling Corp., Fla., 40 So.2d 371.

The purpose of the Act in question is not to protect the sale or to warrant the fixing of the price of any product, but rather is to protect the ownership of good will and the brand, trade-names and trade-marks under which any commodity is sold. The cases cited above make it clear that the protection of such brands is not price fixing.

It is next contended: (1) that the sale of liquor was illegal at the time of the passage of the Act in question and, therefore, not in the contemplation of the Legislature; and (2) that the sale and distribution of liquor is governed exclusively by Chapter 49 of the Acts of 1939, which is complete within itself and constitutes a separate entity from the general laws of the State.

We do not think that the legality of the sale of liquor in Tennessee has anything to do with the application of the Fair Trade Act when properly construed.

Defendants rely upon the case of State v. Nashville Baseball Ass'n, 141 Tenn. 456, 211 S.W. 357, 4 A.L.R. 368, in which it was held that baseball was wholly unknown and...