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Buckingham Corp. v. Vesolowski

JANUARY 10, 1974.




APPEAL from the Circuit Court of Cook County; the Hon. WALTER P. DAHL, Judge, presiding.


Rehearing denied February 4, 1974.

Buckingham Corporation is the national distributor of Cutty Sark, a Scotch whisky. It sells this product through retailers in Illinois under contracts drawn in accordance with the Fair Trade Act (Ill. Rev. Stat. 1969, ch. 121 1/2, pars. 188-191). One of these contracts bound the defendants, Robert and Irene Vesolowski. The contract provided that Cutty Sark would not be sold, advertised or offered for sale below the price stipulated by Buckingham. The minimum stipulated retail price of a quart of Cutty Sark on December 3, 1970, was $8.25. Buckingham accused the Vesolowskis of advertising the whisky on that date for $7.19 a quart. On December 10, 1970, it filed a complaint asking for temporary and permanent injunctions enjoining the Vesolowskis from advertising, offering to sell or selling the whisky for less than the stipulated price. A copy of a typical fair-trade contract and a newspaper advertisement of the Vesolowskis' were attached to the complaint.

A preliminary injunction was entered. The injunction was vacated on October 21, 1971, by a consent decree in which the Vesolowskis agreed that if they ever again sold or offered for sale any of the products distributed by Buckingham for less than the prices stipulated, a permanent injunction could be entered against them. Jurisdiction of the case was retained by the court.

On December 28, 1971, a petition filed by Buckingham alleged that the Vesolowskis had violated the consent decree by selling, on December 12, 1971, a fifth of Cutty Sark for $5.69, although the stipulated fair-trade price on December 12th was $6.59. The petition prayed for the immediate issuance of another temporary injunction.

The Vesolowskis answered; the sale was denied and two abandoned defenses were raised: the fair-trade program had been abandoned at the time of the alleged sale, and Buckingham was prohibited by statute (Ill. Rev. Stat. 1969, ch. 32, par. 157.125) from filing any legal action because it was not authorized to transact business in Illinois.

An injunctive order was entered on January 18, 1972, which was effective to January 24th. On that date it was extended to February 3rd; on February 3rd it was extended until February 8th; on February 8th it was extended to February 24th, then it was extended once more to March 10, 1972. On March 9th the Vesolowskis filed an interlocutory appeal from the orders of January 18, January 24, February 3, February 8 and February 24.

The defendants pray that the five successive injunctional orders be dissolved and reversed. The points advanced in support of the prayer are these:

1. The trial court erred in not holding an evidentiary hearing before issuing the January 18, 1972, injunction.

2. The order granting the injunction was defective.

3. The petition for the injunction was not properly verified.

4. The consent decree of October 21, 1971, provided that a permanent injunction could issue against the Vesolowskis if they again violated the fair-trade contract, but Buckingham applied for, and received a temporary injunction.

None of these points are contested in the plaintiff's answering brief. Instead, two affirmative contentions are raised, the first of which is that the defendants are appealing from a non-appealable order. It is argued that despite the terminology used in the order of January 18th and the subsequent orders, they were in the nature of temporary restraining orders and not appealable as a matter of right.

• 1 One of the cases cited in support of this argument is Bohn Aluminum & Brass Co. v. Barker (1972), 3 Ill. App.3d 600, 278 N.E.2d 247. Leave to appeal was granted in the Bohn case and it was reversed. (55 Ill.2d 177, 303 N.E.2d 1 (1973).) The Supreme Court held that for the purposes of appeal there is no distinction between a temporary restraining order (Ill. Rev. Stat. 1971, ch. 69, par. 3-1) and a preliminary injunction, and both may be appealed under Rule 307(a), which provides: "An appeal may be taken to the Appellate Court from an interlocutory order of court (1) granting, modifying, refusing, dissolving or refusing to dissolve or modify an injunction; * * *." (Ill. Rev. Stat. 1971, ch. 110A, par. 307(a).) Thus it makes no difference if the order in dispute was a temporary restraining order, as the plaintiff argues, or a ...

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