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Show Price Fixing is Restrajtjf Trade U. 8. Circuit Court of Appeal Denlei Kello'o Co'e. Petition For an InjunctionMay In-junctionMay Not Fix Resale Price Violate Sherman Act. Detroit, Mich., April 16. In denying a motion filed by tho Kellog Toasted Toast-ed Corn Flnko company against tho government's petition for an Injunction Injunc-tion to restrain tho company from fixing tho re salo prlco of Its product, tho United States circuit of appeals, In a decision filed yesterday in tho district court here rules that tho owner own-er of a patented carton cannot dictate tho selling prlco of tho goods which tho carton contains. The government's petition, filed In Doccmber, 1912, attacked at-tacked tho selling plan of tho dofend-nm dofend-nm company, stating thnt It specified tho prico which tho Jobber, the wholo salcr nnd tho retailer should cliargo for Its product. In its motion to dismiss tho governments' govern-ments' petition, tho Kellog company contonded thnt Its ownership of a patent pat-ent on a carton In which its product was marketed gavo it tho right to fix tho prlco of tho product. In Its decision de-cision tho cour of nppcnls says: "Tlio manufacturer sells nt uniform prlco of 72.50 per case, exacting from tho Jobbor nn agreement to cliargo tlio retailer a specified prlco, tho Jobber's Job-ber's default In this agreement authorizing auth-orizing tho manufacturer to rcfuso to deal further with Iilin. This provision provis-ion has been strictly enforcod by tho defendants, who refuse to contlnuo dealings with any Jobbers who fall to maintain prices so fixed. "Tlio broad Questions presented aro (1) Whether a manufacturer In con-noitlon con-noitlon with nu absolute salo of its product to n Jobber may lawfully control con-trol tho prlco at which tho complete pnekago shall bo resold by tho Jobbor or by tho retailer who buys rrom tho Jobber; and (2), whether tho soiling plan lu question Is an unlawful restraint re-straint or monopoly nctual or attempt ed. "Tho general rulo is w-ell settled that a system of contracts between manufacturers, manu-facturers, Jobbers nnd retailers by which tho manufacturers nttempt to control tho prices for all sales by all dealers at wholesale or retail, who-thor who-thor purchasers or sub-purchasers, eliminating nil competition and fixing tho amount whlth tho consumer shall pay, nmounts to restraint of trndo nnd Is Invalid both at common law and so far as It affects intcrstato commerce com-merce under tho Sherman anti-trust act. "It seems entirely clear that tho defendant's de-fendant's selling plan hero In ques tlon goes beyond nny protection nf-forded nf-forded by tho patent on tho carton and Is In Its ossentinl principles violative of tho Sherman act. |