Pyroil Sales Co. v. Pep Boys

By stipulation of counsel and order of court, the above-entitled cause was ordered submitted, and to be decided concurrently with Max Factor & Co. et al. v. Kunsman, L. A. No. 14662 (ante, p. 446 [ 55 Pac. (2d) 177 ]), decision in which cause has been this day filed.

The appeal here, as in the Factor case, is by the plaintiff from a judgment of dismissal entered after demurrer to the complaint sustained without leave to amend. Although not as extensive in its allegations as the complaint in the Factor case, the complaint is sufficient to raise the same general question of the constitutionality of the 1933 amendment to the “Fair Trade Act’’ (Stats. 1931, p. 583; Stats. 1933, p. 793). Plaintiff herein seeks an injunction pursuant to the provisions of the act, restraining the defendants from selling Pyroil, a branded and trade-marked article, at retail prices lower than those sought to be maintained by the plaintiff. As in the Factor case, defendants have not bound themselves by any *785 form of contract to resell the commodity at any specified price, but an obligation to so resell is sought by the plaintiff to be imposed on defendants (by the application of section iy2 of the Fair…