The Worcester spy. [volume] (Worcester, Mass.) 1898-1904, 1901-11-26
DECISION OF
| The FULL BENCH
Supreme Court Rules in the Case
Growing Out of the Cutting
of Price of a Patent Medicine
by Dr.. Julius GarSt
HALL & LYON COMPANY
NAMED AS DEFENDANT

The Bill in Equity Asking for An
Injunction to Restrain the Drug
Company From Selling Phenyo-
Caffein at Cut Rates Dismissed
by the Court
The decision of the full bench of the
Massachusetts Supreme Court in Jul
JUS Garst VS.. Hall & Lyon Company,
which has a more radical bearing on
the business of selling medicine and
drugs than any other decision of re-
cent years, and which gives the death
blow to attempts to prevent price cut
ting, has been received in full.
DR.. julius Garst brought a bill in
equity asking for an injunction, but
the bill has been dismissed. The Hall
& Lyon Company was represented by
Charles r. Tatman and, DR.. Garst, by
Thayer &, Cobb.
The opinion is written by Justice
Knowlton and adopted as the opinion
of the full bench 1t is very complete
and settles the right of the retail drug
gist to buy in open market and sell For
the prices he desires to ask. The text
of the opinion. which has never been
is as follows:
Knowlton, J. This case is reserved on
the bill. demurrer, answer and agreed
facts, the defendants rights under the
n y1p+ baiT,o Waived
The plaintiff is the owner and manu-
facturer of a proprietary medicine
known as Phenyo-Caffein, which is
made from a secret formula. His trade
mark for said medicine is registered in
the patent office of the United States
and in the office of the secretary of the
commonwealth of Massachusetts. The
defendant corporation is a retail deal
er in drugs and medicines. The plain
tiff sells all PhenyO -Caffein subject to
the conditions of contract in which
each purchaser agrees that he will not
coll 10" allow anv one in his employ
to sell 1t for prices less than those
specified in the agreement for the diff
terent sizes of boxes and promises to
pay the plaintiff an agreed sum as
damages if he violates this contract.
The plaintiff also agrees, as part Of
the contract, that in case the vendee
at any time desires to discontinue the
sale of this medicine and notifies the
plaintiff in writing of that fact, he VIII
buv of the vendee any of the medi--
cine which he has on hand at the net
cost price at which it was sold to HIM
Besides these facts the plaintiffs bill
ayers that the defendant, with full
knowledge of the conditions under
which the medicine is sold by the
Il nj
large quantities thereof with the in
teniion of retailing it in violation of
these conditions and against the right
of the plaintiff The defendant demurs
for want of equity and for other
causes.
It is not averred that the defendant
ever made any contract or agreement
with the plaintiff or had any dealings
with him No fraudulent act or con-
duct of the defendant in obtaining the
medicine is set out although the word
''fraudulently" is used in characteriz-
ing his acts This word adds nothing
to the averments of fact in the bill
The statement of the alleged fraud is
too general to be the foundation of a
decree. Nichols VS.. Rogers, 139 Mass,
146: Nye VS.. Storer, 16S Mass. 50. The
averments of the bill in this particular
would be entirely satisfied by showing
a purchase of the medicine by the de-
PENDANT from a person who bought II
from the plaintiffs vendee, or from one
who bought it of a purchaser from the
vendee The agreed statement of facts
shows that the defendant obtained 1t
in this way. The defendant did not buy
it from the firm Of wholesalers who re-
ceived it from the plaintiff and who
agreed to sell it subject to the above
I,1t hnnobt IL Of nprC0n
who bought either from this firm or
from a purchaser from this firm.
The transaction between the plain
tiff and his vendee set out in the bill
plainly are sales which pass the title
to the property.
1t is equally, or perhaps more plain,
that the contract contemplated sales
bv retailers which shall pass an abso-
lie title to the property The pur-
chaser from a purchaser has an abso-
Lutte right to dispose of the property. He
may consume it or sell it to another
The plaintiff has contracts from his
vendees in regard to the prices at which
they will SELL if they sell at all II
they sell in violation of their contracts
with the plaintiff he has a remedy
AGAINST them to recover his damages
Garst VS.. Harris. III Mass, Y. This
right is founded on the personal con-
tract alone. and it can be enforced
only against the contracting party. TIC
say that this contract is attached tc
the property and follows it through
successive sales which severally pass
title is a very different proposition We
know Of no authority nor Of any SOUND
| principle which win justify us in 81
holding.
| The plaintiffs trademark does moi
give him the rights of a patentee II
| property manufactured under patent
| His trademark is to secure him ant
| the public from deception and fraud a!
| to the origin and source Of the good:
and of similar goods sold in the mar
| ket.
The law Of copyright also gives priv
| ileges to authors and publishers tina
| do not pertain to property which any
| body may make and sell if he can; bu
| even under the law of copyright, whel
| the owner of a copyright and of
| particular copy of book to which j
pertains has parted with all his title 4
| the book. and has conferred an abso
| Lutte title to it upon a purchaser. h
cannot restrict the right Of alienation
which is one of the incidents Of owner
ship in personal property Harrison vs.
MAYNARD. 81 Fed. Rep, $50. See ais
lClemens VS.. Estes, 164 Mass. 457: L. f
Waterman Co. VS.. Waterman, q ApI
Div. 1873.
In the present case there was nc
only no contract between the plaint;
and the defendant, as in Fowle Y!
Park. 131 L. S. S. but there is no aver
ment or proof that the defendar
fraudulentlv induced and produced til
breach of a contract between the plain
=.---.--=.-=-==-=---
AoeaK ~