68 N.W.2d 620 | Neb. | 1955
GENERAL ELECTRIC COMPANY, a Corporation, Appellant,
v.
J. L. BRANDEIS & SONS, a Corporation, Appellee.
Supreme Court of Nebraska.
Fraser, Connolly, Crofoot & Wenstrand, Hird Stryker, Jr., Omaha, Lynn A. Williams, Chicago, for appellant.
Kennedy, Holland, DeLacy & Svoboda and Robert L. Berry, Omaha, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
*621 YEAGER, Justice.
This is an action in equity by General Electric Company, a corporation, plaintiff and appellant, against J. L. Brandeis & Sons, a corporation, defendant and appellee, instituted and tried in the district court for Douglas County, Nebraska. The case was tried to the court at the conclusion of which a decree was rendered in favor of the defendant and against the plaintiff. Following the rendition of decree a motion for new trial was duly made and regularly overruled. From the decree and the order overruling the motion for new trial the plaintiff has appealed.
This case was heard before this court at the same term as was McGraw Electric Co. v. Lewis & Smith Drug Co., Inc., Neb., 68 N.W.2d 608, in which an opinion was adopted wherein the basic issues on which the determination was made to depend were substantially the same as those upon which the determination herein must depend.
The attack in this case, as in that one, is upon the constitutionality of chapter 136 of the Laws of 1937, known as the Fair Trade Act, which now appears as sections 59-1101 to 59-1108, R.R.S.1943, and section 59-801, R.R.S.1943. The attack in the pleadings is not made in the same form in this case as in that one but it is in similar substance. Of course the parties are not the same.
It appears therefore sufficient to define the factual situation upon which the cause of action and the defense are predicated and adopt and apply thereto as controlling, by reference, the observations made in the opinion of McGraw Electric Co. v. Lewis & Smith Drug Co., Inc., supra.
These facts are substantially that plaintiff is a corporation organized under the laws of the State of New York; that it is engaged in the business of manufacturing electric housewares, clocks, automatic blankets, vacuum cleaners, fans, heating pads, heaters, and heat lamps, and of selling the same throughout the State of Nebraska, which appliances bear the plaintiff's trade-mark, "General (GE) Electric," and are in free and open competition in the State of Nebraska with commodities of the same general class produced and distributed by others; that the defendant is a corporation organized under the laws of the State of Nebraska and is engaged in the retail sale of electrical appliances at its department store in Omaha, Nebraska; that pursuant to the Nebraska Fair Trade Act the plaintiff entered into agreements with distributors and retail dealers in the State of Nebraska whereby minimum retail resale prices for the appliances of plaintiff were established; but that the defendant, though having full knowledge of such agreements and not coming within any exceptions provided in the act, willfully and knowingly advertised, offered for sale, and sold such appliances at retail at prices below the established minimum price.
These facts are not denied. The defense is that the act and particularly section 59-1105 thereof are unconstitutional.
Applying the observations made in McGraw Electric Co. v. Lewis & Smith Drug Co., Inc., supra, to the factual situation in this case, the conclusion is that the Fair Trade Act (Laws 1937, c. 136, p. 478) as well as section 59-1105, R.R.S.1943, thereof (Laws 1937, c. 136, § 5, p. 480), are unconstitutional and void and that the decree of the district court should be and it is affirmed.
Affirmed.