The talking machine world (Jan-Mar 1921)

February 15, 1921 THE TALKING MACHINE WORLD 169 PROGRESS OF THE TRIAL OF THE MACY-VICTOR CASE Action Which Began Before Judge" Mack and Jury in the United States District Court, New York, on January 17 Enters Fifth Week, With Plaintiff's Side Still Unfinished — Some Interesting Testimony Offered — It Is Now Estimated That the Trial Will Last Another Month For the past month the interest of the trade has been centered in the proceedings of the United States District Court for the Southern District of New York, where the action brought by R. H. Macy & Co., the New York department store, against the Victor Talking Machine Co., Camden, N. J., and a number of Victor wholesalers located in and about New York, in an effort to secure $570,000 triple damages for alleged violation of the Sherman Act, has been on trial before Judge Mack and a jury. The suit is regarded as the most important ever brought in the trade from many angles and both sides in the litigation had prepared for a long and bitter fight. The trial was started before Judge Mack on January 17 and as The World goes to press the presentation of arguments and testimony by the plaintiff has just about been finished. With the defense still to be heard it is believed that at least three weeks will be required to bring the case to a conclusion. Edmond E. Wise, of Wise & Seligsberg, appeared for Macy & Co., with George W. Schurman, of Hughes, Rounds. Schurman & Dwight, appearing for the Victor Co., and Gilbert H. Montague for the several jobbers. Plaintiff's Attorney Opens Case The case was opened by Mr. Wise, who, in behalf of the plaintiff, made the claim that the right of the Victor Co. to fix resale prices was not recognized, and cited the decision of the Supreme Court in the Sanatogen case in support of his argument. He also called attention to the fact that the U. S. Supreme Court had sustained the demurrer filed by Macy & Co. through an action brought by the Victor Co. in 1914 seeking to restrain Macy & Co. from cut CABINETS MODERATE PRICES IMMEDIATE DELIVERY Send for circular of our line Everett Hunter Mfg. Co. McHENRY, ILL. ting prices on Victor goods. In presenting his case Mr. Wise paid tribute to the effectiveness of the tremendous advertising campaign carried on by the Victor Co., which had resulted, he said, in "Victor" or "Victrola" being accepted as a generic term for all talking machines by a goodly proportion of the public. In support of the plaintiff's case much was made of the fact that Macy & Co. had been unable to purchase Victor goods direct from the Victor Co. or the various jobbers included in the action since about 1913, and had suffered a material loss in potential profits as a result. Opening Argument for Defense Mr. Schurman, for the Victor Co., declared that his clients had, in every instance, complied with the law and that the present action grew out of the alleged violation by Macy & Co. of a contract they had entered into with the Victor Co. He called attention to the fact that the earlier contracts between the Victor Co. jobbers and dealers had been passed upon favorably by the United States courts up to and including the Circuit Court of Appeals and that it was not until after Macy had proceeded with the alleged violation of the Victor contract that the United States Supreme Court had declared that instrument ineffective. In short, it was maintained by the defense that at the time the dispute arose with Macy & Co. the Victor contract had been upheld by all the courts before which it had been taken. It is also claimed by the defense that Macy & Co. had sought to secure jobbers' discounts upon purchases and had been refused by the Victor Co. as a matter of trade policy. The Cause of the Jobbers Mr. Montague, for the defendant jobbers, denied the existence of any conspiracy among his clients in refusing to supply Macy & Co. with goods, declaring that at the time the plaintiff had attempted to secure goods from the jobbers and, in fact, practically up to date, there was, and has been, a distinct shortage of Victor products; that with limited supplies wholesalers naturally preferred to do business with friendly interests and that the right of a merchant to refuse to sell for cause, or for no cause, has been upheld at least twice by the Supreme Court during the past couple of years. Mr. Montague also emphasized the fact that at the time the various contracts were in force they had been upheld as legal by the courts and that even since the adverse decision of the United States Supreme Court on that question the sound economic principles back of a system of price maintenance had been supported by many important authorities and interests and that legislation to permit of the establishment of standard prices had been, and was, before Congress. Herbert N. Straus the First Witness Herbert N. Straus, of R. H. Macy & Co., was the first witness called by the plaintiff, who remained on the stand for practically two days answering direct questions and replying to cross-examination by counsel on both sides relative to the relationship between Macy & Co. and the Victor Co. from 1908 to 1913, when the disagreement started, and then to daj;e. Mr. Straus told chiefly of happenings since 1913, when Macy & Co. refused to sign a new dealers' contract with the Victor Co jobbers. He outlined the efforts that had been made to reach an understanding, and particularly the efforts that had been made, largely under his personal direction, to secure Victor goods directly from jobbers, or indirectly through other channels. The testimony of Mr. Straus was at times distinctly interesting and illuminating and the character of the questions and answers resulted in frequent clashes between opposing counsel. The next witness was C. H. Williams, described as a buyer for the Macy store, whose special duty, it appeared, was to secure Victor merchandise wherever possible and who devoted an average of half his time to that work. Williams declared that he had called personally upon various jobbers in New York and other cities in the East, particularly after the Supreme Court had sustained the Macy demurrer to the Victor Co.'s complaint in 1917. His testimony regarding alleged conversations between himself and the various jobbers and their representatives seemed particularly interesting to the defendants, several of whom he named in person. It appeared that much work and trouble was involved in getting the desired goods. Later on Percy Straus, a brother of Herbert N. Straus, and also a member of the Macy firm, was called to the witness stand and added some testimony to that given by his brother. Herbert N. Straus was recalled to the stand for re-crossexamination a week or so after his first direct testimony in order to verify the statement that Macy & Co. upheld prices on the toilet preparations of Colgate & Co. and spent an unpleasant few minutes with the Victor Co.'s attorney as a result. Another witness for the plaintiff was Julian Florian, who in 1914 was manager of what was then the wholesale Victor department of I. Davega, Jr., Inc., and who brought to light some alleged dealings he had with Macy after the company had ceased to be a licensed Victor dealer. Florian testified in the course of his direct examination to the existence of a special arrangement he had made with Macy & Co. running from May 4, 1914, to the Fall of that year, whereby various Victor goods were purchased by the plaintiff at regular retail prices and that subsequently a cash refund was made, such refund being placed in sealed envelopes and carried personally by Florian to Mr. Straus. The deal, it was brought out, followed the introduction of Florian to the Macy storeroom where he was shown a considerable stock of Victor goods and informed that they had been obtained from other sources. Florian admitted that he had been discharged from the Davega employ in December, 1914. The attorney for the defense secured the admission from Florian that he was "sore" at Mr. Davega and also at the Victor Co., and had sued I. Davega, Jr., Inc., for the loss of his position, finally settling the case out of court. An Interesting Witness A particularly interesting witness for the plaintiff was Harry E. Oliver, who shed some interesting light upon the methods adopted by the Macy house for securing Victor goods after May, 1914. Oliver stated that he went to various recognized sources of supply in an effort (Continued on page 170) IIIPIIIKt"1 ~ ""lmm (Brilliantone Steel Needles <Tonofbne Flexible Needles Send fir complete price List to kill 1552 nroaduau ^