{ "id": 3353955, "name": "S & F CORPORATION, Plaintiff-Appellee, v. AMERICAN EXPRESS COMPANY et al., Defendants-AppeUants.-(HARRIS TRUST AND SAVINGS BANK et al., Defendants.)", "name_abbreviation": "S & F Corp. v. American Express Co.", "decision_date": "1978-05-11", "docket_number": "No. 77-1094", "first_page": "824", "last_page": "831", "citations": [ { "type": "official", "cite": "60 Ill. App. 3d 824" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "300 N.E.2d 484", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "13 Ill. App. 3d 170", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5341991 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/13/0170-01" ] }, { "cite": "171 N.E.2d 791", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "28 Ill. App. 2d 512", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5219519 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/28/0512-01" ] }, { "cite": "345 N.E.2d 220", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "37 Ill. App. 3d 344", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2714156 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0344-01" ] }, { "cite": "236 N.E.2d 289", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "92 Ill. App. 2d 290", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5322342 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-2d/92/0290-01" ] }, { "cite": "192 N.E.2d 572", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "43 Ill. App. 2d 100", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5244949 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/43/0100-01" ] }, { "cite": "146 N.E. 325", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 2, "year": 1924, "opinion_index": 0 }, { "cite": "315 Ill. 328", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2436576 ], "weight": 2, "year": 1924, "opinion_index": 0, "case_paths": [ "/ill/315/0328-01" ] }, { "cite": "243 N.E.2d 31", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1924, "opinion_index": 0 }, { "cite": "103 Ill. App. 2d 197", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1599852 ], "year": 1924, "opinion_index": 0, "case_paths": [ "/ill-app-2d/103/0197-01" ] }, { "cite": "274 N.E.2d 153", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "1 Ill. App. 3d 635", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5314515 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-app-3d/1/0635-01" ] }, { "cite": "350 N.E.2d 210", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "38 Ill. App. 3d 937", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2803344 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/38/0937-01" ] }, { "cite": "308 N.E.2d 313", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "17 Ill. App. 3d 545", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2509841 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/17/0545-01" ] }, { "cite": "358 N.E.2d 61", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "44 Ill. App. 3d 148", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2815883 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/44/0148-01" ] }, { "cite": "292 N.E.2d 479", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "9 Ill. App. 3d 527", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2853910 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/9/0527-01" ] }, { "cite": "312 N.E.2d 252", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "57 Ill. 2d 318", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5406480 ], "opinion_index": 0, "case_paths": [ "/ill-2d/57/0318-01" ] }, { "cite": "298 N.E.2d 767", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "12 Ill. App. 3d 708", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2854421 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0708-01" ] }, { "cite": "302 N.E.2d 394", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "14 Ill. App. 3d 348", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2685768 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-app-3d/14/0348-01" ] }, { "cite": "372 N.E.2d 837", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "57 Ill. App. 3d 152", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3420649 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/57/0152-01" ] } ], "analysis": { "cardinality": 777, "char_count": 16272, "ocr_confidence": 0.892, "pagerank": { "raw": 6.456573857584235e-07, "percentile": 0.9600928471119359 }, "sha256": "1840e1ca81fe94e722cbcfdf5d157a0656a9d1c10edbaed1fa88777f552d3b1f", "simhash": "1:51f5d5fffee46ed7", "word_count": 2602 }, "last_updated": "2023-07-14T19:17:48.742090+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "S & F CORPORATION, Plaintiff-Appellee, v. AMERICAN EXPRESS COMPANY et al., Defendants-AppeUants.\u2014(HARRIS TRUST AND SAVINGS BANK et al., Defendants.)" ], "opinions": [ { "text": "Mr. JUSTICE LINN\ndelivered the opinion of the court:\nThis is an interlocutory appeal taken from certain orders of the circuit court of Cook County which entered and continued in effect a preliminary injunction preventing defendant, American Express Company (American Express), from terminating a written restaurant agreement with plaintiff, S & F Corporation (S & F). On appeal, defendants, American Express and Joyce B. Clegg, an employee of American Express, contend that: (1) there were insufficient allegations in the complaint of S & F to sustain the granting of a preliminary injunction; (2) the circuit court erred in denying the oral motion of American Express to dissolve the preliminary injunction; (3) the injunction orders entered by the circuit court were procedurally inadequate; and, (4) the preliminary injunction wrongfully enforces a totally new contractual relationship between S & F and American Express.\nWe find the complaint filed by S & F was legally insufficient to justify the granting of preliminary injunctive relief. Accordingly, we reverse the orders which entered and continued in effect the preliminary injunction.\nOn May 28,1976, S & F and American Express entered into a restaurant agreement pertaining to an establishment called \u201cThe Basement\u201d at 874 N. Wabash Avenue, Chicago, Illinois. \u201cThe Basement\u201d also does business as the \u201cCandy Store,\u201d a nude dancing parlor which serves only soda pop and near beer.\nThe contract provided that S & F agreed \u201cto permit Cardmembers to charge purchases of restaurant services at your establishment(s)\u201d subject to enumerated conditions. It further stated: \u201cIn case that you [S & F] own and operate two or more establishments, American Express shall assign to each establishment a unique service establishment number. You [S & F] shall submit all Charges from each such establishment according to its respective service establishment number.\u201d Under the heading \u201cTerm of this Agreement\u201d the contract provided:\n\u201cThis Agreement shall supersede any previous Agreement between us concerning the same subject and shall become effective when the enclosed copy of this letter, signed on your behalf, is received at our New York office. This Agreement may be terminated by either of us at any time by written notice. Unless we advise you of an earlier termination date, no such termination shall become effective until the distribution of the next Card Directory listings or any other promotional material listing service establishments from which your establishment can be deleted, or six months from the time the notice of termination is given, whichever is earlier, and you agree to honor Cards until such termination becomes effective.\u201d (Emphasis added.)\nOn May 4,1977, Joyce B. Clegg, an employee of American Express and a defendant herein, sent a written notice of termination which was admittedly received by S & F, indicating that the restaurant agreement would terminate on May 13, 1977.\nOn May 17,1977, the circuit court, based on S & F\u2019s emergency petition and verified complaint against American Express for injunctive relief and related damages, entered an ex parte temporary restraining order enjoining American Express from terminating S & F\u2019s credit card privileges. On May 25,1977, the restraining order was continued in effect. American Express then removed the action to the Federal district court. Thereafter S & F amended its complaint, adding Illinois residents Joyce B. Clegg, Harris Trust and Savings Bank and Cosmopolitan National Bank as defendants. On June 24, 1977, the case was remanded from the Federal district court to the circuit court of Cook County.\nCount I of the amended complaint, seeking injunctive relief, alleged, inter alia, that defendants had created a demand for credit card services; that S & F required these services in order to compete in its industry; that defendants had encouraged S & F to use credit card services and had a duty to treat S & F equally and fairly; that in violation of this duty, defendants had conspired to terminate credit card services to S & F; and, that the termination of S & F\u2019s credit card privileges would put S & F out of business. In count II S & F again set forth the above allegations and further stated that by terminating its credit card services, American Express had slandered and defamed S & F\u2019s business reputation, and S & F requested appropriate injunctive relief. Count III sought related compensatory and punitive damages. A copy of the agreement was attached to the complaint.\nAfter the case was remanded from the Federal district court, and in response to S & F\u2019s petition for a rule to show cause and request that the temporary restraining order previously entered be reinstated and continued in effect, the circuit court, on June 28, 1977, entered a preliminary injunction requiring American Express \u201cto honor and pay all charges submitted to it by [S & F] from May 13,1977 until further order of court.\u201d\nDefendant, American Express, thereafter answered the complaint denying all material allegations and affirmatively alleging that the restaurant agreement was terminable at will upon written notice and that the establishment operated by S & F offered no restaurant services.\nA hearing was held on July 12, 1977, at which time American Express asked leave to present several witnesses out of the regular order of proof. Sidney Finzelber, president of S & F, was called as an adverse witness by American Express. He testified that S & F used the name \u201cThe Basement\u201d as a trade name for its checking account in connection with the establishment covered by the restaurant agreement. However, the name \u201cCandy Store\u201d appeared on the marquee outside the building and in all advertising for the establishment. The \u201cCandy Store[\u2019s]\u201d bill of fare included only soft drinks and near beer.\nMichael Kidd, district manager of American Express, explained the \u201cnegative float\u201d procedure followed by American Express in processing charges. On cross-examination he stated that to his knowledge American Express had not sustained a loss due to charges processed through S & F, although several card members had contested bills from the \u201cCandy Store.\u201d American Express had realized a substantial commission under its contract with S & F. Both Kidd and Joyce B. Clegg testified that they had no contact with anyone at Cosmopolitan National Bank or Harris Trust and Savings Bank in regard to cancelling the agreement with S & F.\nS & F presented no evidence at the July 12 hearing. At the conclusion of the hearing, the oral motion of American Express to dissolve the injunction was denied and the trial court continued in effect the previously entered preliminary injunction. American Express thereupon appealed from the June 28 and July 12,1977, orders pursuant to Supreme Court Rule 307(a)(1) (Ill. Rev. Stat. 1977, ch. 110A, par. 307(a)(1)).\nOpinion\nAmerican Express argues that the allegations of the complaint were insufficient to establish S & F\u2019s right to preliminary injunctive relief. For a preliminary injunction to issue, a plaintiff must establish that: (1) he possesses a certain and clearly ascertained right which needs protection (Bromberg v. Whitler (1978), 57 Ill. App. 3d 152, 372 N.E.2d 837; Schwalm Electronics, Inc. v. Electrical Products Corp. (1973), 14 Ill. App. 3d 348, 302 N.E.2d 394; (2) he will suffer irreparable injury without the protection of the injunction (Knuppel v. Adams (1973), 12 Ill. App. 3d 708, 298 N.E.2d 767); (3) there is no adequate remedy at law for the injury (La Salle National Bank v. County of Cook (1974), 57 Ill. 2d 318, 312 N.E.2d 252; and (4) plaintiff is likely to be successful on the merits (McErlean v. Harvey Area Community Organization (1972), 9 Ill. App. 3d 527, 292 N.E.2d 479).\nA preliminary injunction is an extraordinary remedy, and it will not issue unless a clear right to the relief is shown. (Whitaker v. Pierce (1976), 44 Ill. App. 3d 148, 358 N.E.2d 61.) The issuance of a preliminary injunction is within the discretion of the trial judge. (Summit Electric Co. v. Mayrent (1974), 17 Ill. App. 3d 545, 308 N.E.2d 313.) Nevertheless, such discretion is not unlimited, finding its measure principally in the sufficiency of the complaint. (McErlean v. Harvey Area Community Organization (1972), 9 Ill. App. 3d 527, 292 N.E.2d 479.) The only question brought before a reviewing court on an interlocutory appeal is whether there was a sufficient showing to sustain the order of the trial court granting or denying the relief sought. Schwalm Electronics, Inc. v. Electrical Products Corp. (1973), 14 Ill. App. 3d 348, 302 N.E.2d 394.\nHere the temporary restraining order and, later, the preliminary injunction were issued before American Express answered the complaint. (See Summit Electric Co. v. Mayrent (1974), 17 Ill. App. 3d 545, 308 N.E.2d 313.) Although S & F suggests that other \u201cevidence\u201d was presented at the May 17, 1977, ex parte proceeding before the trial judge, no report of proceedings or other evidence has been included in the record which would allow us to consider it. Our review of the trial court\u2019s issuance of the preliminary injunction thus rests solely on the sufficiency of the complaint.\nS & F argues that although the restaurant agreement entered into with American Express states it is terminable at will by either party and upon written notice, due to American Express\u2019 creation of a credit card market and S & F\u2019s alleged reliance on the market to continue in business, the termination provisions should not be enforced according to their terms. Thus, S & F suggests, judicial intervention is necessary to prevent a termination of the agreement.\nThe first question, which is dispositive of this appeal, is whether S & F\u2019s complaint establishes a clear right to the relief sought. In construing a contract, the determinative factor is the intention of the parties. The intention of the parties must be determined from the language employed in the contract and, where there is no ambiguity, from such language alone. Gardiakos v. Vanguard Communications, Inc. (1976), 38 Ill. App. 3d 937, 350 N.E.2d 210.\nWe find no ambiguity in this contract and, therefore, no need to employ theories of construction. The contractual relationship between American Express and S & F was terminable by either party upon written notice. There was no requirement that cause be the basis for termination. In this instance, the terms of the agreement, rather than the nature of the business engaged in by either party, must control the result.\nContractual provisions providing for termination of an agreement are generally enforceable according to their terms. The applicable law can be stated as follows:\n\u201cA contract may provide that it shall come to an end at the option of one or either of the parties; and such a stipulation when fairly entered into will be enforced if not contrary to equity and good conscience, and if not in violation of any limitation imposed by statute. Irreparable harm, in and of itself, is insufficient to prevent the otherwise lawful termination of a contract.\u201d 17A C.J.S. Contracts \u00a7399 (1963).\nIllinois courts have repeatedly held that executory contracts of indefinite duration are terminable at the will of either party. (Kraftco Corp. v. Koblus (1971), 1 Ill. App. 3d 635, 274 N.E.2d 153; Schoen v. Caterpillar Tractor Co. (1968), 103 Ill. App. 2d 197, 243 N.E.2d 31; Gage v. Village of Wilmette (1924), 315 Ill. 328, 146 N.E. 325.) In Gage v. Village of Wilmette (1924), 315 Ill. 328, 146 N.E. 325, our supreme court held that an injunction will not be granted to restrain a party from discontinuing performance under an executory contract which is terminable at will. We see no reason to find otherwise, especially in the instant case where the restaurant agreement specifically states that the contract can be so terminated.\nSince the restaurant agreement contained an apparently valid termination provision, the trial court erred in granting the preliminary injunction because S & F did not establish a clear right to the relief sought. Moreover, the broad nature of the relief granted by the trial court was inappropriate. Although initially characterized as a restraining order, the relief sought by S & F can best be described as a temporary decree of specific performance or mandatory injunction. (See Ambassador Foods Corp. v. Montgomery Ward & Co. (1963), 43 Ill. App. 2d 100, 192 N.E.2d 572.) A preliminary mandatory injunction may issue only when the need for such relief is clearly established and free from doubt. (Peckler v. Cullerton (1968), 92 Ill. App. 2d 290, 236 N.E.2d 289.) As a general rule mandatory preliminary injunctive relief is not favored by the courts, and the only justification for such relief is to maintain the status quo, where it is necessary to prevent irreparable injury. Halvorsen v. Richter (1976), 37 Ill. App. 3d 344, 345 N.E.2d 220.\nAs American Express suggests in its brief, the preliminary injunction entered by the trial court does not preserve, but alters the status quo. American Express was ordered to honor \u201call charges\u201d made in \u201cany establishment owned by S & F Corporation.\u201d The injunction was to remain in effect \u201cuntil further order of court.\u201d When compared to the actual terms of the restaurant agreement, requiring American Express to honor only charges for \u201crestaurant services\u201d made at \u201cThe Basement\u201d and permitting termination of the agreement by either party upon written notice, it becomes apparent that the trial court has ordered the enforcement of an agreement entirely different than the one created by the parties.\nHaving held that the trial court erred in issuing the preliminary injunction in this case, it is unnecessary to reach the remaining contentions raised on appeal. We note, however, that the trial court\u2019s denial of American Express\u2019 motion to dissolve the preliminary injunction was improper. The oral motion to dissolve was made after American Express had answered the complaint, denying the allegations of the complaint and affirmatively alleging that the agreement was terminable at will. A partial hearing had been held at which time American Express presented several witnesses. S & F presented no evidence to substantiate its prayer for injunctive relief. At that stage in the proceedings the trial court was required to look at the verified pleadings and weigh the other evidence to determine if S & F had sustained its burden of proving a clear right to the injunctive relief. (McFetridge v. First Commercial Bank (1961), 28 Ill. App. 2d 512, 171 N.E.2d 791.) The motion of American Express to dissolve the injunction should have been granted.\nIt must be emphasized that our decision is limited to the narrow questions presented by the record before us and concerns solely the merits of the preliminary injunction.\nThe orders granting and continuing the preliminary injunction are, therefore, reversed and the cause is remanded for further proceedings.\nReversed and remanded with directions.\nDIERINGER and ROMITI, JJ., concur.\nDefendants Harris Trust and Savings Bank and Cosmopolitan National Bank were not included in the injunction orders appealed from and are not parties to this appeal.\nThe June 28, 1977 order referred to the injunction as a \u201ctemporary injunction.\u201d This term is not appropriate. (See Ill. Rev. Stat. 1977, ch. 69, pars. 3 and 3\u20141; Paddington Corp. v. Foremost Sales Promotions, Inc. (1973), 13 Ill. App. 3d 170, 300 N.E.2d 484; Schwalm Electronics, Inc. v. Electrical Products Corp. (1973), 14 Ill. App. 3d 348, 302 N.E.2d 394.) We will therefore refer to the trial court proceedings as pertaining to a \u201cpreliminary injunction.\u201d\nBy citing these cases we do not mean to imply that the agreement between American Express and S & F lacked mutuality of obligation.", "type": "majority", "author": "Mr. JUSTICE LINN" } ], "attorneys": [ "Richard E. Alexander, John S. Pacocha, and Stephen M. Flanagan, all of Richard E. Alexander, Ltd., of Chicago, for appellants.", "Anthony J. Valentino and Patrick A. Tuite, both of Chicago, for appellee." ], "corrections": "", "head_matter": "S & F CORPORATION, Plaintiff-Appellee, v. AMERICAN EXPRESS COMPANY et al., Defendants-AppeUants.\u2014(HARRIS TRUST AND SAVINGS BANK et al., Defendants.)\nFirst District (4th Division)\nNo. 77-1094\nOpinion filed May 11, 1978.\n\u2014Rehearing denied June 2, 1978.\nRichard E. Alexander, John S. Pacocha, and Stephen M. Flanagan, all of Richard E. Alexander, Ltd., of Chicago, for appellants.\nAnthony J. Valentino and Patrick A. Tuite, both of Chicago, for appellee." }, "file_name": "0824-01", "first_page_order": 846, "last_page_order": 853 }