Westerly Tobacco Co. v. Huberman

9 Mass. App. Dec. 74

• Court: Massachusetts District Court, Appellate Division
• Decided: February 28, 1955
• Docket: No. 374115
• Status: Published

Opinions

Adlow,

C. }. Action of contract in which the plaintiff, a wholesale dealer in cigarettes, cigars, tobacco and sundry products, seeks to recover from the defendant, a retail dealer, the balance due for merchandise sold and delivered to the defendant. The plaintiff’s declaration was upon an account annexed setting out the dates of the invoices and the amounts thereof with all the credits due thereon, leaving an alleged balance due of $1,126.66. The defendant’s answer was a general denial and in addition the defendant alleged that the plaintiff’s action was based on an illegal agreement.

At the beginning of the trial (Tomasello, /.) it was agreed by the parties that the correct balance due to the plaintiff, if the plaintiff was entitled to recover was $1,062.29, of which $647.72 represented the sale price of cigarettes. There was evidence that in 1949 the plaintiff, through its agent, solicited the account of the defendant and thereafter and up to November, 1953, sold to him cigars, cigarettes, and tobacco. According to evidence offered by the plaintiff’s agent the only discount offered to the defendant was 5 c/o on cigars. The defendant offered evidence to the effect that at the time he was approached by the plaintiff’s agent he was offered a discount of z°fc or five cents a carton on cigarettes, 8 c/o across the board discount on cigars and x % on tobacco. The defendant stated that from time to time as payments were made by him on account, he was either given a refund or credits for an amount equal to five cents on each carton of cigarettes.

At the close of the evidence the plaintiff requested the court to rule that "as a matter of law, the evidence is insufficient to support a finding that the plaintiff has violated the provisions of section 14, Chapter 64C of the General Laws of Massachusetts.” The court denied this request, and being aggrieved by the court’s ruling the plaintiff brings this report.

G. L. c. 64C, §13 (St. 1945, c. J47, §1) provides in part:

"It shall be unlawful—, for any wholesaler with intent to injure competitors, destroy substantially or lessen competition, to advertise, offer or sell at wholesale cigarettes at less than cost to the wholesaler.—”

G. L. c. 64C, §17, declares that any contract made in violation of this provision shall be illegal and void and expressly provides that "no recovery thereon shall be had.”

In refusing to permit the plaintiff to recover the sale price of the cigarettes, which the defendant conceded had been delivered to him, the court has in effect found that the cigarettes were sold in violation of G. L. c. 64C, §13, and the sole question for this court to consider concerns the sufficiency of the evidence bearing on this issue.

The report purports to contain all the evidence material to the questions reported. While the report states that "the declaration was upon an account annexed setting out the dates of the invoices and the amounts thereof with all due credits thereon,— there is nothing in this report to indicate the quantity of cigarrettes involved in the transactions between the parties, nor is any mention made of the unit price at which said cigarettes were sold by the wholesaler to the retailer. All that we learn from the report is that, of the balance claimed, $647.72 was for cigarettes. The only evidence bearing on the prices of cigarettes came from a certified copy of the minimum wholesale price of cigarettes established by the Commissioner, as of March 3, 1953.

Whether the cigarettes, for the purchase price of which the plaintiff seeks to recover in this action, were sold before or after March 3, 1953 does not appear in the report. Nor do we believe that in and of itself this fact would be decisive of the issue. In the first adjudication under this statute it was held that "The cost below which cigarettes may not be sold, is the actual cost to the particular retailer, and not the usual cost in the trade or the cost as determined by any survey or by any public officer.” Commissioner v. Ryan, 323 Mass. 154, 157. We see no reason why the same rule is not applicable in determining the fair price level for wholesalers. Aside from the presence of the schedule of minimum prices for cigarettes as established by the Commissioner, there is nothing in the report to enable us to determine the cost of the cigarettes to the wholesaler, the cost of doing business by the wholesaler, or the price at which the cigarettes were sold by the wholesaler to the retailer.

While G. L. c. 64c, §13 C excuses the production of actual proof of the cost of doing business by wholesalers and permits instead the application of an arbitrary figure of 2% of the invoice cost to the wholesaler, this privilege is without effect because of the complete absence of evidence as to the cost price to the wholesaler, or the sales price to the retailer. The court erred in refusing to rule as requested by the plaintiff that there was no evidence to support a finding that G. L. c. 64C, §14 had been violated.

It is unnecessary to send this case back for a new trial. The defendant had a right to present the evidence material to this issue at the previous trial. Apparently, he failed to do so. We have no right to assume that there was such evidence, and that its absence from the report is due to an oversight. It appears in the report that at the commencement of the trial it was agreed by the parties that the correct balance due to the plaintiff, if the plaintiff was entitled to recover same, was $1,062.29, of which $647.72 represented the sale of cigarettes. Under the circumstances nothing remains to be done except to enter a finding in accordance with the agreement of the parties as to the amount due the plaintiff in the event of a finding for the plaintiff.

G. L. c. 231, §124; Sheehan v. Commercial Travelers’ Mutual Acc. Assoc., 283 Mass. 543, 555.

Finding for plaintiff in amount of $414.57 vacated.

Finding to be entered for plaintiff in amount of $1,062.29.