69 A.2d 559 | N.J. Super. Ct. App. Div. | 1949
The plaintiffs instituted this proceeding under the Declaratory Judgments Act, R.S. 2:26-66 et seq., to declare a contract executed by the defendant pursuant to the provisions of the Fair Trade Act, R.S. 56:4-1 et seq., to be null and void, and to restrain the defendant from taking any proceeding against the plaintiffs.
The defendant has moved to dismiss the complaint on the ground that it is insufficient in law and fails to state a claim upon which relief can be granted. *453
These are the facts alleged in the complaint: The plaintiffs are the owners of retail drug stores in the City of Newark. The defendant is the manufacturer of soap and ointment products marketed under the trade name "Cuticura." Pursuant to the provisions of the Fair Trade Act, the defendant executed a contract with one or more of its retailers in this State, fixing the minimum price at which its commodities might be sold at retail. Notice of the execution of this contract was given by the defendant to retailers, including the plaintiffs, and by reason thereof, the plaintiffs became bound to sell at the prices fixed by the defendant. The plaintiffs allege that they maintained such Fair Trade prices but discovered that a number of their competitors were selling the products below the fixed prices, and they thereupon reduced prices to meet the competition. They notified the defendant of such underselling, but it failed to obtain from other retailers compliance with the price schedule. The plaintiffs charge that accordingly the defendant has abandoned its contract and the prices adopted thereunder, and they seek a judgment declaring the contract to be null and void, permitting the plaintiffs to sell the defendant's products free of restrictions and enjoining the defendant from taking any proceeding to enforce against plaintiffs the resale price fixed by the defendant.
Upon the filing of the complaint, duly verified, a preliminary restraint issued against the prosecution of any action by the defendant against the plaintiffs. The defendant has moved to vacate the restraint in the event that its motion for dismissal of the complaint be denied, and has filed affidavits of other retailers which allege that the plaintiffs were the violators of the price schedule and that plaintiffs' conduct produced the underselling — "the pot called the kettle black."
Both parties assert that the instant matter is of novel impression in this State and that Stockman v. Wilson DistillingCo., Inc.,
Referring to the Stockman case, Professor Borchard in his work on Declaratory Judgments, 2d ed., 1941, in a note atp. 1025, observed: "In Stockman v. Wilson Distilling Co.,
Significantly, the only defendant in this proceeding is the manufacturer and producer of the products. The retailer or retailers with whom the defendant entered into the *455 Fair Trade contract are not parties to the suit. The plaintiffs admit that they received notice of the execution of the contract and "by reason of the statute, the contract and the notice thereof given to the plaintiffs, the plaintiffs became bound to sell all of the defendant's products at the prices fixed therefor by the defendant." A contract may not be declared null and void in the absence of a party to the contract. Indeed, the Declaratory Judgments statute expressly provides, R.S. 2:26-72, "When declaratory relief is sought, all parties having or claiming any interest which would be affected by the declaration shall be made parties to the proceeding."
In Declaratory Judgments, 2nd ed., 1941, at p. 256, Professor Borchard states:
"The reason for the rule of Section 11 of the Uniform Act (R.S. 2:26-72 and 73) is to ensure in principle the presence, or at least service upon, all other interested persons who would be affected legally by the decision. The rule is not without exceptions. In addition to the rules of practice as to indispensable parties, Section 11 vests in the courts a wide discretion to order the joining and impleading of all interested or affected persons, since without them the declaratory judgment would not terminate the controversy or uncertainty sub judice, which it is the essential purpose of the declaratory action to accomplish.
"The absence of parties the court deems necessary to this tranquilizing function would thus cause the declaratory action to fail of its purpose, so that the court is likely to dismiss without prejudice an action in which necessary parties have failed of joinder. * * * Courts properly decline to make declarations between parties when others, not bound, might later raise the identical issue and deprive the declaration of that final and pacifying function it is calculated to subserve."
St. John's Baptist, etc., v. Ukrainian National Association,
In Empire Trust Co. v. Board of Commerce, etc.,
In Township of Ewing v. Trenton,
The complaint will be dismissed.