Universal Talking MacHine Manufacturing Co. v. Southern California Music Co.

[758]

LORIGAN, J.

Plaintiff is a manufacturer of phonographic records in the state of New Jersey. Defendant is engaged in selling musical instruments, supplies, and phonographic records at wholesale and retail in the city of Los Angeles.

This action was brought by plaintiff to recover from defendant a balance due of $8,433.24 for phonographic records sold it during a course of years.

In its answer defendant admitted a balance due of $2,433.24 but defended against the further amount of six thousand dollars claimed due by plaintiff on the ground that it was damaged to that extent by a breach on the part of plaintiff of a contract between them respecting the sale and purchase of said records. As to such defense it was averred that the phonograph records purchased by it from plaintiff consisted of what are known as Zon-o-phone ten and twelve inch disc records manufactured by plaintiff; that it was agreed between the parties when defendant purchased them from the plaintiff that the price of said records to jobbers, dealers and at retail would be maintained by plaintiff at certain prices (specified in the answer), and that defendant would not sell in violation of the same; that under said agreement defendant purchased a large number of records from plaintiff of both such sizes and at such prices; that subsequently, in October, 1908, without the consent of defendant and while it had on hand thirty thousand of said single-disc records, plaintiff lowered the prices thereof (to certain figures set forth) and sold and permitted all its customers to sell said single-disc records at such reduced prices; that in 1909 while defendant had on hand twenty-eight thousand of such records plaintiff, without the consent of defendant, further lowered the prices of said records; that by the action of plaintiff in lowering the prices of said records and in selling and permitting them to be sold at such reduced prices the value of the records which defendant had on hand was lessened to the extent of six thousand dollars, and defendant thereby damaged in that amount.

The court found that no agreement whatever was made between plaintiff and defendant that the plaintiff would maintain.any price for. said records as asserted by defendant and gave judgment to plaintiff for the full amount sued for.