Opinion
No. 32785
Decided May 14, 1952.
Judgments — Court of record speaks through journal — Decree enjoining partnership and partners as such — Partner as individual not included within prohibition.
1. A court of record speaks through its journal. (Paragraph one of the syllabus in the case of State, ex rel. Industrial Commission, v. Day, Judge, 136 Ohio St. 477, approved and followed.)
2. A decree enjoining "the defendant, Harry R. Schoenlaub, individually and * * * Harry R. Schoenlaub and Sam Schoenlaub as partners doing business as H. S. Schoenlaub Mfg. Co. * * * from manufacturing directly or indirectly" a certain product, includes within its prohibition the partnership, Harry as in individual, Harry as a partner, and Sam as a partner but not Sam as an individual.
APPEAL from the Court of Appeals for Hamilton county.
On September 19, 1949, the defendant, Harry Schoenlaub, entered the employ of the plaintiff, Shipping Room Suppliers, Inc., a corporation engaged in the manufacture of hand trucks and other equipment for moving merchandise.
In the contract of employment it was agreed that if and when he would leave the plaintiff's employ, he would not engage in manufacturing similar products for a period of two years thereafter.
On March 3, 1950, he left the plaintiff's employ and entered into a partnership with his brother Sam, one of the defendants herein, under the name of H. S. Schoenlaub Mfg. Co. This firm engaged in the manufacture of products claimed to be similar to those of the plaintiff. The plaintiff then instituted this action and on October 5, 1950, obtained an injunction to prevent the operation of the competing partnership business.
In the meantime on September 27, 1950, the partnership was dissolved when Harry sold and transferred his interest in the business to Sam who concededly was not a party to the employment contract between Harry and the plaintiff. After the dissolution of the partnership, the business was operated by Sam alone under the changed name of the Schoenlaub Mfg. Co.
Subsequently on December 20, 1950, the plaintiff filed a motion to cite Sam for contempt of court for violation of the injunction in continuing to manufacture equipment similar to the product of the plaintiff.
The trial court found the defendant Sam Schoenlaub not guilty of violating the injunction.
On an appeal to the Court of Appeals on questions of law, the judgment of the trial court was affirmed.
The cause is in this court for a review by reason of the allowance of the plaintiff's motion to certify the record.
Messrs. Gorman, Silversteen Davis and Mr. Sol N. Wolfson, for appellant.
Mr. Louis J. Schneider, Jr., for appellee.
The sole question here involved is whether Sam Schoenlaub as an individual is included within the prohibition of the injunction granted by the trial court.
This, of course, is answered by the terms of the journal entry itself which reads in part as follows:
"It is, therefore, ordered, adjudged and decreed that the defendant, Harry R. Schoenlaub, individually, and that Harry R. Schoenlaub and Sam Schoenlaub as partners doing business as H. S. Schoenlaub Mfg. Co. be and they are hereby enjoined from manufacturing directly or indirectly through others similar types of trucks, stapling devices, and packaging system now manufactured by plaintiff for a period of two years from March 3, 1950, to all of which the defendants except."
Clearly the decree expressly includes the partnership; it includes Harry as an individual; and it includes both Harry and Sam as partners. But does it impliedly include Sam as an individual?
It is important to observe that in the decree Harry is specifically enjoined "individually" but Sam is not. Sam is mentioned but once — as a partner, while Harry is named twice — as a partner and as an individual. This is a distinction that can not be disregarded.
Furthermore, the only mention of Sam is as a partner in the phrase "Harry R. Schoenlaub and Sam Schoenlaub as partners." The plaintiff insists that the word "as" is unimportant and should not have been included in the language of the journal entry. A study of the record discloses that the word did not appear in the original draft of the entry but that it was inserted at the instance of counsel for the defendants and with the knowledge of counsel for the plaintiff. After this insertion, the entry was approved by the trial court and remains unmodified. Of course, a court of record speaks through its journal.
But in addition to the controlling language of the decree, there seems to be no valid reason for enjoining Sam Schoenlaub as an individual as well as a partner. It is not claimed that he was a party to the employment contract between his brother Harry and the plaintiff. Hence, there was no privity between Sam and the plaintiff. Under these circumstances, had Sam started the manufacturing business alone, could he have been enjoined because he was competing with the plaintiff? Is this changed by the fact that Harry was associated with Sam in the former partnership? The plaintiff's answer is in the affirmative but this is by reason of its claim that Harry disclosed to Sam certain of the plaintiff's trade secrets. It is true that in the petition the plaintiff included two causes of action — one for disclosure of trade secrets and the second for breach of contract. However, the trial court's decree was based solely on the breach of the contract to which Sam was not a party.
As observed by the trial court, to hold that Sam Schoenlaub, under these facts, is guilty of contempt of court would be to allow the plaintiff to accomplish by means of a citation that which it could achieve through no other action.
The lower courts were not in error, and the judgment of the Court of Appeals must be affirmed.
Judgment affirmed.
ZIMMERMAN, STEWART, TAFT and HART, JJ., concur.
MIDDLETON and MATTHIAS, JJ., dissent.