199 F. 309 | N.D.N.Y. | 1912
The complainant moves for a preliminary injunction on the bill of complaint and affidavits filed, which allege in substance that the defendants are interfering with complainant’s lawful contracts and inducing certain customers, parties to said contracts, to violate same to the great damage of the complainant; that defendants are interfering with the complainant’s business in furnishing its trading stamps to merchants who are under exclusive contract with the complainant to use its stamps; and that by false representations
The complainant makes or causes to be made its trading stamps which are known as the “Green Trading Stamps.” The defendants make or cause to be made and used their trading stamps •which are known as the “Palace Trading Stamps.” The complainant furnishes to its subscribers or those merchants under contract with it its Green Trading Stamps in pads which may contain 1,000 or 5,000 stamps, and the complainant’s canvassers explain to householders that by making their purchases at these stores of said subscribers they will receive a trading stamp or stamps in accordance with the amount of the purchase, and that when a sufficient number áre collected or received by the householder in this way that said stamps will be redeemed by the complainant at its premium store. The canvassers of the complainant deliver to the householders who are willing to receive them trading stamp books in blank for the convenient retention of said stamps until the required number have been collected. When the required number of these stamps has been received by the customer, he or she may go to the premium store of the complainant and there receive a premium in the form of some article of merchandise such as silverware, glassware, curtains, rugs, pictures, etc., claimed to correspond in value with the stamps collected in exchange for such stamps.
The specific object of this form of advertising is to attract customers to the stores of the complainant’s subscribers, with whom the complainant has contracts to use their stamps exclusively, and to have such customers pay cash on all purchases.
The defendants, the owners and makers and distributors of the Palace Trading Stamps, are engaged in the same business, and the complainant and the defendants are therefore competitors in this business. After the stamps have been delivered to the merchant for use, there are, of course, three parties to a complete transaction; that is, the party furnishing the stamps to the merchant, the merchant who distributes the stamps, and the customer who pays cash for the goods, and the customer who receives the stamp and as a consideration for paying cash for his purchase of the merchant is eventually to receive some article of some value as a so-called premium.
The complainant alleges that it has entered into valid, written contracts with certain merchants in the city of Albany-by which it has agreed to furnish these merchants its Green Trading Stamps and give the premiums to the customers of such merchants when they become entitled thereto, and that such merchants have agreed on their part to use the Green Trading Stamps of the complainant exclusively. The complainant contends that these contracts are valid and binding and violate no law. The complainant also contends that the defendants, engaged in the same business of furnishing stamps to merchants and supplying premiums to the customers of such merchants who make cash purchases, have unlawfully and wrongfully and maliciously interfered with the complainant’s business and contracts with merchants to complainant’s great damage in substantially the following manner, viz.: That defendants have gone to the merchants with
The defendants deny that they have made any false or untrue representations or statements to these merchants or to any of them, and deny that they have done anything to induce these merchants to violate or disregard their contracts with the complainant. The defendants allege and claim that they have the. right to compete with the complainant in this business, and to furnish their stamps to these merchants for use in the mode and manner and for, the purposes aforesaid, so long as they make no false representations or-statements, and so long as they do nothing for the purpose of inducing these merchants to break or disregard their contracts with the complainant. The defendants deny that they have said or done anything which has or will induce the merchants to violate or break their contracts with the complainant, unless it be that the mere offering to furnish their stamps to these merchants has that effect. The defendants contend that, even if the complainant has a valid contract with merchants to deal exclusively with the complainant and to take and use the Green Trading Stamps only, they, the defendants, have the right to offer these merchants their stamps for use in the same mode and manner, and that it is optional with the said merchants to take the Palace Trading Stamps and distribute them to their customers; and defendants also contend that if the merchants elect to break their contracts in that regard and use and distribute to their customers the Palace Trading Stamps as well as the Green Trading Stamps, or the Palace Stamps to the exclusion of the Green Trading Stamps, these defendants are not responsible and have committed no wrong so long as they do nothing else by way of inducement to the merchants; and defendants claim that this is not inducing these merchants under contract with the complainant to violate or break their contracts and is not an unlawful interference with the business of the complainant.
[ 1 ] The affidavits on the material questions in this case are conflicting, and the determination of the questions of law involved, if any, will depend largely on the facts as they appear on the trial. It has been settled for a long time that when affidavits as to the existence or nonexistence of the material facts alleged conflict, the question should, be left for the trial court and jury, if it be a jury case, except in cases of pressing necessity, as when it appears that great and irreparable damage is being done and the defendant is. unable to respond
This court would not undertake to enjoin the defendants from offering or furnishing or supplying the “Palace Trading Stamps” to the merchants, who have, it is alleged, entered into contracts with the complainant to use its “Green Trading Stamps” exclusively, without notice to such merchants and hearing them. As complainant’s counsel says in his brief:
‘•In the system there are three jmrties, the complainant, the subscriber (merchant), and the subscriber’s customers.”
1,3] The alleged subscribers (merchants), who sell the goods to their customers (the consumers), who in turn get the premiums as a reward for paying cash, aud such customers are not parties to this action, aud for anything this court knows the merchants may desire to contest both the existence of the alleged contracts and their validity, if they do exist. I do not suppose this court can enjoin the defendants from supplying these merchants Palace Trading Stamps at the suit of this complainant if the merchant denies he is under contract with the complainant and really desires to have the Palace Trading - Stamps, or if he voluntarily elects to violate his contract with complainant if he has made one, and receive the defendants’ trading stamps to give his customers. I do not see that the customers of the merchants are in fact or in law parties to these contracts in any way that binds them to trade with a particular merchant or with particular merchants who are handling the Green Trading-Stamps. It is settled law, 1 lake it, that no man has the right by false statements or any illegal means to induce another, or actively attempt to induce another, under a valid contract with a third person. to break or violate such contract. I will assume, for the purposes of this motion, that the alleged contracts so far as they exist are valid, without deciding or holding them to be so, and grant an injunction restraining defendants and each of them from soliciting or requesting any merchant under contract with the complainant and known to the defendants to have such contract to violate same by means of materially false or untrue statements, or by means of any reward or compensation for so doing.
I will not decide, on this motion, that any of the alleged contracts are valid aud binding on the merchants, or enjoin the defendants from furnishing the Palace Trading Stamps to any merchant who requests same or with whom they have a contract to furnish such stamps, or from offering to furnish the Palace Trading Stamps to any merchant whether under contract with the complainant or not.
If defendants have already induced merchants under valid con
There may be a preliminary injunction, enjoining and restraining defendants and each of them from soliciting or inducing, by any illegal means or method, any merchant or merchants who are known to them to have existing contracts with the complainant to use the Green Trading Stamps exclusively, to break or violate such contract or contracts, until the further order of this court.