Burnham v. Burnham

Adkins, J., delivered the opinion of the Court. Appellant was found guilty of contempt of court for an alleged violation of a decree of the Circuit Court for Baltimore County and fined twenty-five dollars. This appeal is from that order. ³⁵⁰ Appellant and appellee were formerly partners in the ice business, for which receivers were appointed on a bill filed by appellee. The receivers sold the property, trade routes, and good will of the business, and appellee became the purchaser.

Subsequently a bill for injunction was filed by appellee to restrain appellant from continuing the ice bush ness on the trade routes sold to appellee. The court passed a decree by -v^iich appellant was restrained and enjoined from further “soliciting, selling or delivering any ice to any one of the customers who prior to the sixth day of May, 1926, were the customers of the ice manufacturing business of the said partnership, * * * including all individuals and other purchasers of ice whose residence or place of business were upon the customer’s routes served either by the said Melvin J. Burnham or John E. Burnham prior to the sixth day of May, 1926. It being the intended purpose of this decree in no manner to affect the right of the said John E. Burnham to conduct the ice business in Baltimore County or elsewhere, so long as he refrain from inviting, soliciting, or selling any of the customers on the aforesaid trade routes, or soliciting them to deal with any ice manufacturer or vendor other than the said Melvin J. Burnham.” On appeal from said decree, this court said: “Construing this decree to mean that John E. Burnham shall refrain from soliciting and selling, on said trade routes, ice to the former customers thereon of said firm, we find no error in said decree.” And on June 8th, 1927, it was affirmed on that construction of its meaning. Burnham v. Burnham, 153 Md. 147 .

Subsequently, on June 14th, 1927, appellee filed a petition reciting the former decree of the circuit court; alleging that said decree “was in all respects affirmed” on appeal; “that the said John E. Burnham, despite the fact that his counsel had been informed of the action of the Court of Appeals and of the transmission of its mandate to this court as aforesaid, continues to sell and deliver ice to individuals residing in Baltimore County who, prior to the 6th day of May, 1926, were customers of the said partnership known as Melvin J. ³⁵¹ Burnham & Brother, in violation of the aforesaid decree of this court of the 20th day of October, 1926, so affirmed by the Court of Appeals.” The prayer of the petition is that the said John E. Burnham be cited to show cause why he should not be punished for contempt in refusing to comply with “the aforesaid decree of this court,” that a mandatory order be issued requiring him to desist from the violation of said decree, and for further relief. In our order affirming the decree appealed from we were careful to construe the word “or” in that decree to mean “and” so that the injunction was held to be not from soliciting or selling, but from soliciting and selling. In other words selling and delivering to former customers was not a violation of the injunction, unless it involved solicitation. The court passed an order on the petition requiring appellant to show cause why he should not be punished as for contempt.

Whereupon an answer was filed in which appellant denied that he liad violated the decree of the circuit court as affirmed by the Court of Appeals. In the testimony offered by appellee, it was shown that, since the date of the decree and its 'affirmance, appellant had been selling and delivering ice to the former customers of the former partnership on the route which he had formerly served. Appellant testified that he had not at any time since