Johnson & Johnson v. Weissbard

• Decision Date: 30 April 1937
• Docket Number: No. 207.,207.
• Citation: 191 A. 873
• Parties: JOHNSON & JOHNSON et al. v. WEISSBARD et al.
• Court: New Jersey Supreme Court

191 A. 873

JOHNSON & JOHNSON et al.

v. WEISSBARD et al.

No. 207.

Court of Errors and Appeals of New Jersey.

April 30, 1937.

Appeal from Court of Chancery.

Suit by Johnson & Johnson and others against Harry Weissbard and another, partners, trading as Weissbard Brothers. A motion to strike portions of defendants' answer was denied, and a statute directing a resident merchant not to resell trade-marked or branded articles at less than the price fixed by the producer or owner of such marked commodities was held unconstitutional as delegating powers to individuals without definite policy and rule of action and as depriving retailers of liberty and property without due process of law (120 N.J.Eq. 314, 184 A. 783), and complainants appeal.

Reversed.

Merritt Lane, of Newark, for appellants. Bilder, Bilder & Kaufman, Samuel Kaufman, and Morris M. Schnitzer, all of Newark, for respondents.

BODINE, Justice.

The appellants have for years been engaged in the production, sale, and distribution of pharmaceutical preparations bearing distinctive trade-marks, brands, or names. They sought to restrain the defendants from selling and advertising for sale, or offering for sale in their stores products made by appellants for a less price than that fixed for resale. Chapter 58, P. L. 1935, p. 140 (N.J.St.Annual 1935, §§ 217—13 to 217—17), was designed to secure to the appellants this right. Our statute is a counterpart of the statute recently adopted in many states, notably Illinois (Smith-Hurd Ill.Stats. c. 121 1/2, § 188 et seq.) and New York (Laws N.Y.1935, c. 976).

The Court of Chancery held the act unconstitutional, but this decision was before the unanimous decision of the Supreme Court of the United States holding the Illinois statute constitutional. Old Dearborn Distributing Co. v. Seagram-Distillers Corp. (McNeil v. Joseph Triner Corporation), 299 U.S. 183, 57 S.Ct. 139, 81 L.Ed. —, 106 A.L.R. 1476. A reading of that decision is a complete answer to every argument advanced against the statute. Nor do we perceive how the requirements of our statute affect interstate commerce. It is a mere direction to a resident merchant that he must not resell trade-marked or branded articles at less than the price fixed by the producer or owner of such marked commodities. If the merchant would profit by the good will built up by the owner or producer he must comply with the requirements of the Legislature. He may remove the mark or brand and sell the goods he owns at his own price. But he may not utilize the good will of another without complying with the statute which brands as unfair the sale of identified goods at less than the price fixed by the "producer."

Section 1, subdivision 2 of the Illinois Act (Smith-Hurd Ill.Stats. c. 121 1/2, § 188 (2) declared constitutional by the Supreme Court of the United States is as follows: "(2) That the producer or vendee of a commodity require upon the sale of such commodity to another, that such purchaser agree that he will not, in turn, resell except at the price stipulated by such producer or vendee." The words in italics seem to have been omitted from section 1, subdivision (b) of our statute (N.J.St.Annual 1935, § 217—13 (b), so that the same reads as follows: "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...