34 Md. 444 | Md. | 1871
delivered the opinion of the Court.
When this case Avas before us upon a former appeal, it was very fully and carefully examined. We then arrived at the conclusion, that the decree of the Court beloAV Avas correct, except in so far as it required an account for medicines “ manufactured or sold.” We designed to restrict the accounting to such medicines as Avere manufactured and sold under the trade-marks of Henry Stonebraker or the imitations of them, after the dissolution of the firm of Stonebraker, Hoffman &
Hoffman and Samuel Stonebraker had an undoubted right, under the terms of dissolution, to sell and transfer, with the trade-marks and certificates, any medicines on hand at the time of the dissolution of the firm of Stonebraker, Hoffman & Co. The sale of such medicines was in accordance with their contract, and if they had done nothing more than make the sale to Passano & Clotworthy, there could have been no decree against them. But the evidence so connected them with the subsequent acts of their vendees, that we were satisfied, as was the Court below, that the sale was made by them with the intent and for the purpose of enabling Passano & Clotworthy to manufacture and sell medicines under the trademarks of Henry Stonebraker.
It was therefore that we found no error in that part of the original decree, in which it is set out that the sale was made to Passano & Clotworthy with that intent and for that purpose.
We also believed that they had so connected themselves by their acts and declarations with the subsequent manufacture and sale of medicines under the prohibited trade-marks, as to make them equally responsible with their co-defendants for such sales, and as the record did not disclose any facts, which made it equitable that the wrong done to the complainant should bo apportioned among the several co-defendants, we also agreed with the Court below that the accouting by them should be in solido.
The connection of these appellants with the unauthorized sales of the medicines in question was distinctly presented and decided in the former appeal — and that question is no longer an open one before this Court. In the opinion then delivered, this language is used : “ That Samuel Stonebraker
It was also decided that the injunction, which was issued against them, had been properly granted. There were two of the appellants then in this Court, and in deciding the propriety of granting the injunction asked for in the complainant’s bill, the Court say: “ the decree of the Court below is correct in so far as it proceeds to restrain and enjoin the appellants.”
The present decree carefully avoids the error committed in the first. In the account directed to be taken, the medicines on hand at the time of the dissolution of the firm of Stonebraker, Hoffman & Co., are to be excluded, and only such sales are to be included as were made of medicines manufactured after that time, and sold under the prohibited trade-marks.
These views, we think, dispose of the several objections made on the part of the appellants to the decree in its present form. We have been unable to discover any error in it, but are of opinion that it has been passed in accordance with the directions and opinion of this Court as expressed upon the former appeal.
This being so, the present appeal cannot be maintained, and the motion to dismiss must be granted.
Appeal dismissed.
