Mennen Co. v. Krauss Co.
| Decision Date | 03 March 1941 |
| Docket Number | No. 503.,503. |
| Citation | 37 F. Supp. 161 |
| Parties | MENNEN CO. v. KRAUSS CO., Ltd. |
| Court | U.S. District Court — Eastern District of Louisiana |
E. Howard McCaleb, of New Orleans, La., for plaintiff.
Milling, Godchaux, Saal & Milling and L. K. Benson, all of New Orleans, La., for defendant.
Alleging that defendant had violated Act 13 of the Legislature of Louisiana for the year 1936, commonly known as the Fair Trade Act, plaintiff, a manufacturer or producer of products which bear its trade mark, brand or name, brought this suit to restrain defendant from selling its products at retail for prices less than the minimum prices prescribed by plaintiff in schedules issued in connection with contracts which plaintiff made with 112 retail dealers operating stores in the State of Louisiana.
Upon the filing of the complaint and on motion of counsel for complainant a rule nisi issued herein to show cause why an interlocutory injunction should not be granted. After a hearing an interlocutory injunction was issued without opposition in order that the matter might remain in status quo pending a decision on the merits. Subsequently the defendant filed a motion to dismiss and an answer alleging that Act 13 of 1936 is unconstitutional, null and void in that said Act violates Section 14 of Article XIX of the Louisiana Constitution of 1921 which prohibits combinations in restraint of trade. Further answering in the alternative, and in the event that the Court should hold that Act 13 of 1936 is not unconstitutional, defendant alleges that plaintiff is still not entitled to the relief which it seeks for the reason that the contracts which plaintiff made with other dealers and which plaintiff asserts are binding on defendant do not comply with the provisions of Act 13 of 1936, are not protected thereby, and hence constitute prohibited combinations in restraint of trade, in violation of Section 14 of Article XIX of the Louisiana Constitution for the year 1921, and of Act 11 of the Extra Session of the Legislature of Louisiana for the year 1915 and of Act 90 of the Regular Session of the Legislature of Louisiana for the year 1892.
The answer also sets up by way of counterclaim that certain false, malicious and untrue averments contained in the bill of complaint having no relevancy or pertinency to the subject matter of this suit constitute a libel of defendant and its business and have damaged defendant to the extent of $10,000, and judgment for said amount against plaintiff is prayed.
Reserving for later independent discussion the questions which arise in connection with defendant's counterclaim for damages it is apparent from the foregoing that there are only two issues involved in this case. There are no issues of fact.
This case was tried on an agreed statement of facts with reservation of the right to the parties to present additional evidence. Agreeable to the stipulation oral testimony was offered and received; however, this additional evidence did not alter, modify or enlarge in any material respect the stipulation on file.
Findings of Fact.
Briefly stated, the material facts are these:
1. Mennen Company sells and distributes within the State of Louisiana certain commodities produced by it and which bear its trade mark, brand or name and the said products or commodities are in fair and open competition with commodities of the same general class produced by others.
2. After the adoption of Act 13 of the Louisiana Legislature of 1936, plaintiff entered into contracts with 112 retail dealers in the State of Louisiana in respect to commodities produced by it in which the buyer agreed not to resell said products below the current retail minimum price list effective November 1, 1937. Defendant has never entered into any such contract or similar contract with plaintiff or anyone else, nor has it agreed to maintain any retail price or minimum retail price in respect to any retail sales made by it of any products produced by the Mennen Company.
3. During the years 1936, 1937 and up to the present time plaintiff caused to be circularized among all retailers of drugs, cosmetics and similar products retail minimum price lists. Each and all of said retail minimum price lists contained the following:
"
4. Notwithstanding these notices defendant with full knowledge of the contracts sold at retail identified products produced by plaintiff at prices which defendant considered acceptable to itself, regardless of whether such prices were below the minimum prices specified by plaintiff in said price lists.
5. That until restrained by the Court defendant had advertised, offered for sale and sold at retail to the consuming public of the city of New Orleans, the commodities and products bearing plaintiff's marks, names, brands and labels, below the minimum prices which the plaintiff had prescribed.
6. That the plaintiff's products purchased by and delivered to defendant direct from plaintiff is or was the property of defendant at the time of such retail sales but the trade marks, name and good will remained the property of plaintiff.
Discussion.
Section 1 of Act 86 of the Legislature of Louisiana for the year 1890 provides that "Every contract * * * in restraint of trade * * * is hereby declared illegal."
Section 1 of Act 90 of the Legislature of Louisiana for the year 1892 provides: ...
To continue reading
Request your trial
-
Pepsodent Co. v. Krauss Co.
... ... than the minimum retail or resale price,' but, on the ... contrary, it permits only contracts which provide that the ... buyer will not resell the commodity except at the exact price ... stipulated by the vendor. Defendant relies, in support of its ... contention, on the cases of Mennen Company v. Krauss Company, ... D.C., 37 F.Supp. 161; Town of Lonoke v. W. Y. Bransford & ... Son, 141 Ark. 18, 216 S.W. 38; and Brown v. Baker, 108 Wash ... 161, 183 P. 89 ... [9 So.2d 305] ... The pertinent ... provisions of Act 13 of 1936, the Fair Trade Act of this ... State, ... ...
-
Harris v. Steinem
...on the counterclaim, if the alleged libelous statements concerned matters other than the stock sale.15 But cf. Mennen Co. v. Krauss Co., 37 F.Supp. 161, 164 (E.D.La.1941), rev'd on other grounds, 134 F.2d 348 (5th Cir. 1943) (under Louisiana law, libel counterclaim based on defamatory plead......
-
Shulton, Inc. v. Hogue & Knott, Inc.
...which prohibit resale "except at the price stipulated by the vendor." The only case in point cited by appellees, Mennen Co. v. Krauss Co., 37 F.Supp. 161 (D.C.La.1941) construing a parallel Louisiana statute, was subsequently reversed by the Fifth Circuit, Mennen Co. v. Krauss Co., 134 F.2d......
-
Town of Greybull, Matter of
...Dictionary, Revised Fourth Edition, defines stipulate as: 'Arrange or settle definitely, as an agreement or covenant. Mennen Co. v. Krauss Co., D.C.La., 37 F.Supp. 161, 163.' (Emphasis In the same dictionary, supra, under the heading 'stipulation,' we find the following: 'the name given to ......