Scott S. Mcintire v. Louis Borofsky D/B/a

This case presents the constitutionality of the Unfair Sales Act (R. L., c. 204) as applied to the agreed statement of facts quoted above. In preliminary summary the act makes it a misdemeanor for any retailer or wholesaler, ""with intent, or effect, of injuring competitors or destroying competition,"" to advertise or sell merchandise at less than cost as defined in the act. The advertisement or sale at less than such cost ""shall be prima facie evidence of a violation of this chapter."" (S. 2). The statutory base for determining ""cost to the retailer"" is invoice cost or replacement cost, whichever is lower, less trade discounts to which is added freight and cartage charges and ""a mark-up to cover in part the cost of doing business, which mark-up, in the absence of a proof of a lesser cost, shall be six percent of the total cost at the retail outlet."" S. 1 (I). Numerous exceptions are made by the act (s. 3) so that it does not apply under stated conditions to isolated transactions, clearance sales, perishable merchandise, imperfect or damaged merchandise, final liquidation sales, sales to relief agencies and for charities, sales to state or municipal agencies, sales in good faith to meet legal competition or sales under court order. The act also provides that violations may be enjoined by the Superior Court. (S. 4). The legislative history of the act begins in 1939 when an unsuccessful attempt was made to obtain an advisory opinion as to its constitutionality. Opinion of the Justices, 90 N.H. 567. At the next session the act was enacted into law (Laws 1941, c. 92) and was reenacted in the Revised Laws without substantial change in its present form.