WINCHESTER-WESTERN DIVISION v. Gibson Dakota, Inc.

160 N.W.2d 413, 83 S.D. 411, 1968 S.D. LEXIS 148, 1968 Trade Cas. (CCH) 72,574

• Court: South Dakota Supreme Court
• Decided: August 16, 1968
• Docket: File 10450
• Status: Published

Opinions

RENTTO, Judge.

Plaintiff as the producer of firearms bearing the trademark "Winchester'', entered into a written contract with the defendant, a retailer of such articles in Rapid City, South Dakota, under our Fair Trade Law, SDC Ch. 54.04, providing minimum retail resale prices below which the retailer would not sell such articles. In this suit plaintiff claims that the defendant violated that agreement by selling such articles at less than their minimum prices and asks that it be enjoined from continuing to violate the agreement in that manner. The court granted an interlocutory injunction as requested by the plaintiff.

On defendant's motion to dissolve the interlocutory injunction and dismiss the proceeding, which presented no fact questions, judgment was entered granting such relief. From this judgment plaintiff appeals.

The contract entered into by these parties contained a provision whereby either party could terminate it at any time by giving ten days written notice to the other. It also stipulated that within 30 days after receipt of such notice of termination Winchester had the right to repurchase from the dealer at the original invoice cost its entire inventory of Winchester brand firearms. The trial court viewed these provisions of the contract as affording plaintiff an adequate remedy, justifying its denial of injunctive relief. We are unable to concur in this view.

The adequate remedy which will deprive equity of jurisdiction is one that is capable of protecting the right being asserted by the aggrieved party or affording redress for its violation. High on Injunctions, Third Ed., § 28; Pomeroy's Equity Jurisprudence, Fifth Ed., § 176 and § 217; 28 Am.Jur., Injunctions, § 38; 30 C.J.S. Equity § 25. While plaintiff's exercise of its options of termination and repurchase would cancel defendant's appointment as an authorized Winchester Firearms Dealer and relieve it of its stock of Winchester firearms, such actions would not afford any protection of the rights which plaintiff is seeking to maintain under the contract. The suggested course of conduct would result in a surrender of these rights, not their protection.

In this proceeding the requirement of our Fair Trade Law that the firearms involved were in free and open competition with commodities of the same general class produced or distributed by others, was supported by an admission of a claim to that effect in the pleadings, rather than being established by proof of such fact. In House of Seagram, Inc., Seagram Distillers Company Division v. Assam Drug Company, 83 S.D. 320, 159 N.W.2d 210, we held that injunctive relief should not be granted unless the fact of free and open competition was established by proof. Accordingly, plaintiff was not entitled to the relief it sought.

The judgment appealed from is affirmed.

ROBERTS, BIEGELMEIER, and HOMEYER, JJ„ concur. HANSON, P. J., dissents.