Wells v. Osborne

Henderson, J., delivered the opinion of the Court. This appeal is from an order dismissing a petition to restrain the appellee from violating the terms of an injunction contained in a decree passed on February 7, 1951, and to have him adjudged in contempt. The case originated in 1950, when, after hearing upon the original bill, an injunction was issued restraining Dr. Osborne from practicing his profession of chiropractor at his residence, No. 1172 of The Terrace, in Hagerstown. Upon appeal to this Court the decree was reversed for reasons stated and the case remanded for the passage of a less sweeping decree.

Osborne v. Talbot, 197 Md. 105 . On remand, the decree of February 7, 1951, was passed ³⁷⁷ continuing the prior injunction “except as modified by the opinion of the Court of Appeals.” In passing the order now appealed from, the Chancellor found that the appellee’s conduct, as developed at the hearing, did not amount to a violation of that decree. Since our previous opinion laid down the law of the case on which the decree of February 7, 1951, was based, it is necessary to consider the exact scope of the holding. We sustained the validity of the restrictive covenant, contained in a deed of October 25, 1910, that the premises should be “occupied and used for residence purposes only and not otherwise.” We held that the injunction in the decree appealed from was too broad, because it “in effect refused to recognize any distinction between practice of a profession wholly at or from one’s residence and ‘incidental’ practice to a limited extent in special circumstances.” Osborne v. Talbot, supra, p. 110.

On the record before us, we held that the limited, incidental use of his residence as there proposed, would not be a violation of the covenant. At that time Dr. Osborne was regularly practicing his profession at his office on Broadway, and in his answer to the bill averred that the use of his residence was only incidental and supplemental, “beyond usual office hours, to his regular-office which is maintained in another location.” However, in his testimony he “in effect declined to confine his intentions for the future within the scope of his answer. He admitted he had expressed a desire to save office rent in the future, ‘as time might crawl up’ on him and he might conduct a smaller practice entirely at his residence.” Osborne v. Talbot, supra, p. 110. In regard to this threatened action we left the matter open.

We said (p. 118) : “If defendant should abandon his present office and remove it to his residence, there is not sufficient evidence, as to how the present office is conducted, to enable us to determine whether or not such an office at the residence would violate the covenants. Our decision will be without prejudice to further proceedings in this case or a new case, if and when ³⁷⁸ such a change is made or threatened and plaintiffs are in a position to show the material facts.” It is undisputed that on or