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235 F2d 186 General Electric Company v. All-American Sales

235 F.2d 186

GENERAL ELECTRIC COMPANY, Plaintiff-Appellee,

v.

ALL-AMERICAN SALES, Inc., Defendant-Appellant.

No. 11638.

United States Court of Appeals Seventh Circuit.

August 10, 1956.

Maurice Albin, Max Raphael, Chicago, Ill., for defendant-appellant.

Cyrus Mead, III, Hamilton K. Beebe, Herman L. Taylor, Chicago, Ill., for plaintiff-appellee.

Before FINNEGAN, SWAIM and SCHNACKENBERG, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

1

This is an action to enjoin defendant from advertising, offering for sale or selling, at retail, within the state of Illinois any of the appliances manufactured and sold by plaintiff and bearing the plaintiff's trade-mark "General (GE) Electric", at prices less than the minimum retail prices stipulated for each of said appliances by plaintiff pursuant to its fair trade agreements and to the Fair Trade Act of the state of Illinois. The district court found for the plaintiff and issued a permanent injunction, as prayed in plaintiff's complaint. From this decree defendant has appealed.

2

Defendant contends that the sales made by defendant were wholesale sales and not retail sales and therefore not in violation of a retail fair trade contract plaintiff seeks to enforce; that, even if the sales could be construed as retail sales, they were made through error or inadvertence and were not wilful and knowing violations within the meaning of the Fair Trade Act of Illinois, Ill.Rev. St.1955, ch. 121½, §§ 188-191; and that the evidence upon which plaintiff relied was insufficient to prove that defendant wilfully and knowingly sold and advertised plaintiff's products below fair trade prices.

3

Answer having been filed creating issues of fact arising on the allegations of the complaint, the district court heard the evidence of witnesses and considered documentary evidence offered by the parties, and thereupon entered nine findings of fact. These findings support the allegations of the complaint and are contrary to the aforesaid contentions of the defendant in this court. We have examined the record and find that there is substantial evidence to support the findings.

4

Under rule 52(a) of the Federal Rules of Civil Procedure,1 we have no right to set aside the findings of fact unless clearly erroneous.

5

For these reasons, the decree of the district court is affirmed.

Notes:

1. 28 U.S.C.A., Rule 52.