128 P. 1041 | Cal. | 1912
This is an appeal from a judgment enjoining defendants from selling or offering to sell a product of plaintiff known as Ghirardelli's ground chocolate, except at prices in direct conformity with the schedule embodied in the notice or label attached to plaintiff's product, which declares the fixed minimum retail price to be thirty cents for one lb. tins and eighty cents for three lb. tins. The judgment was entered upon defendants' failure to answer, after their demurrer to the complaint had been overruled. The demurrer was practically a general demurrer for want of facts sufficient to constitute a cause of action.
The complaint seeking the injunction granted sets forth substantially the case which was presented in Grogan v. Chaffee,
"Our fixed minimum retail price on Ghirardelli's Ground Chocolate for the Pacific Coast is 30c per 1 lb. tins and 80c for 3 lb. tins.
"D. GHIRARDELLI COMPANY."
In addition to the allegations contained in the complaint inGrogan v. Chaffee,
It is complained that nevertheless defendants are offering for sale and are selling said product for prices below those specified, to the great damage of plaintiff. There are specific averments as to the nature of the damage so caused.
The fact alleged that the product is manufactured, prepared, and packed by plaintiff "in accordance with certain secret processes and formula of its own" is in no way material. Upon this point the reasoning of the supreme court of the United States in Dr. Miles Medical Co. v. John D. Park Sons Co.,
In view of the allegations as to the agreement entered into by defendants with the jobber or wholesaler at the time of the purchase of the goods by them, for the express benefit of the plaintiff, the case presented here is practically the same case that was presented in Grogan v. Chaffee. It appears from the complaint that such wholesaler or jobber had acquired the goods from plaintiff upon the agreement on his part that if he sold the same at wholesale he would do so subject to the same conditions that had been imposed on him as to retail sales. If this was a valid undertaking on his part, he was not only authorized but bound to make such a contract as he is alleged to have made, for plaintiff's benefit, with any person to whom he sold the goods at wholesale. It is positively alleged that he did make such a contract with defendants, and that it was understood and agreed between them that the same was made for the express benefit of plaintiff. So far as appears such agreement was based on a sufficient consideration. No reason is apparent why it can be held that the contract thus alleged is not one of the class referred to in section
It was held in Grogan v. Chaffee, that under the circumstances there appearing, the contract involved was not unenforceable as being in restraint of trade. Much consideration was given by the court to that question, a rehearing having been granted to give further consideration to the views of the United States circuit court of appeals for the sixth circuit in certain patent medicine cases (153 Fed. 24, [12 L.R.A. (N.S.) 135, 82 C.C.A. 158], and 164 Fed. 803, [90 C.C.A. 579]), and all of the justices of this court except the chief justice and the writer of this opinion concurred in the judgment given and the reasons expressed therefor. Since that decision was rendered, the supreme court of the United States has decided Dr. Miles Medical Co. v. Park Sons Co., being the same case reported in 164 Fed. 803, [90 C.C.A. 579], affirming the judgment of the circuit court of appeals,
It is urged that the agreement here sought to be enforced is within the prohibitory provisions of the so-called Cartwright Act of this state enacted in 1907 (Stats. 1907, p. 984), as amended in 1909 (Stats. 1909, p. 593). This is a question not decided inGrogan v. Chaffee,
It is not urged that the complaint does not sufficiently show that the conditions imposed were necessary to afford a fair protection to plaintiff's business. In fact, the only points made in defendants' brief against the judgment are those we have discussed.
The judgment is affirmed.
Sloss, J., Shaw, J., Melvin, J., Henshaw, J., and Lorigan, J., concurred.