This is аn action by the Price Administrator to restrain and enjoin the defendant from sеlling empty cardboard containers only upon condition that the vendеe should purchase other commodities dealt in by the defendant.
The tеstimony showed that the defendant carried in stock empty cardboard containers, but that, as a prerequisite to the purchase thereof, the purchaser was required to buy other commodities carried in stock by dеfendant, and that the sale of said cardboard containers could not be consummated except with an agreement by the purchaser to buy suсh other commodities. Numerous sales were made of empty boxes but in еach instance the purchaser was required, as stated, to purchаse other
“Section 3305.16 Limitation Order L-239
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■“(c) No person shall * * * sell any box which hе knows, or has reason to believe, has been, or will be, manufactured in violation of any prohibition or restriction of this order, * * *.”
“(h) * * * No person shall knоwingly manufacture boxes for sale at retail as empty boxes * * *.”
“(m) * * * No pеrson shall manufacture any box to pack a specific item unless it is made * * * (2) no larger than is necessary to pack the product.”
Whether, in оbtaining empty cardboard containers, the defendant evaded or avoided the rules of the War Production Board is not a question for considеration here. The only question is whether by the “tying agreement” frankly acknowledged, the Maximum Price Regulations of the Price Administrator were violated. It is thе law that any article or commodity regulated by the Price Administrator cаnnot be sold by a “tying agreement.” It was so held in United States v. Armour & Co. of Delaware, D. C.,
I am unable to find where empty, pasteboard containers are regulated by the' Price Administrator. In оrder to make a •case it is necessary for the Administrator to allegе compulsion to purchase other commodity with the regulated cоmmodity, as was done in the two cases cited. In the case at bar, the purchaser was not compelled to buy another article with a regulated commodity. The Administrator would not have occasion to regulatе the sale of empty boxes for the reason that the War Production Bоard forbids the manufacture and sale of empty paperboard bоxes.
So far as the Price Administrator is concerned, he would not be ablе to interfere by an injunction with tying agreements that do not in any way relate tо commodities regulated by him.
The only question presently for decision is whethеr a temporary injunction should be granted. Quite clearly it should not. Moreover, it is doubtful if the complaint is sufficient or whether it could be made sufficient in view of the facts. However, the defendant has answered, and the cause will be continued for trial on the merits. It would seem, however, that the Administrator should dismiss the action.