Balzer v. Caler

WASTE, C. J.

A hearing was granted in this cause in order to consider the constitutionality of the Unfair Practices Act as amended in 1935. (Stats, of 1935, chap. 477, p. 1546; Deering’s Codes, Laws and Constitutional Amendments, 1935 Supp., Act 8781.) Upon further deliberation, for reasons hereafter appearing, • it is our opinion that the constitutionality of the statute is not involved in this proceeding.

This cause is a companion ease to

Wholesale Tobacco Dealers Bureau

v.

National Candy & Tobacco Co.,

L. A. 15836, this day decided

{ante,

p. 634 [82 Pac. (2d) 3]). The appeal is by the plaintiff from a judgment refusing to issue an injunction to prohibit the defendant from selling in his grocery stores certain staple articles for less than cost. It is claimed that such sales were in violation of the above-mentioned act. The complaint upon which the action was predicated is in four counts. The first count alleges that on specified dates defendant offered and advertised for sale in his stores certain designated articles at less than invoice or replacement -cost. The third cause of action alleges that defendant on the days specified sold the articles so adver

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tised for less than invoice or replacement cost. In neither of these counts is it alleged that the acts charged were performed for the purpose of injuring competitors and destroying competition.

The second and fourth causes of action allege the same facts as do the first and third causes of action, but add the allegation that these acts were performed “for the purpose of injuring competitors and destroying competition”.

Demurrers to each count were overruled. The defendant answered admitting the offers and sales at less than his invoice or replacement cost, but he denied that these acts were performed with the intent to injure competitors or destroy competition, alleging, in this connection, that he offered for sale and sold the goods for less than cost for the sole purposes of meeting the competition of other merchants and of advertising and stimulating his own business.