Kelly v. Morrison , 234 Mass. 382 ( 1920 )

Jenney, J.

It is unnecessary to decide whether an appeal lies from a decree dismissing a petition for attachment for contempt, because there was no error in the action of the Superior Court, even if the question raised by the appeal is before us properly. See Newton Rubber Works v. De Las Casas, 198 Mass. 156; DeFerrari v. DeFerrari, 220 Mass. 38; White v. White, 233 Mass. 39.

After the decision of this case reported in 231 Mass. 574, a. final decree was entered “perpetually restraining the defendant- . . . from the use of the name Thomas Kelly in connection with his business except as it shall be used to indicate his succession to the business of Thomas Kelly, and Company.”

Subsequent to the entry of this decree, the defendant carried on business under the following designation: “Thomas Kelly & Co.’s Successor James M. Morrison,” the manner of arrangement and style of lettering being as indicated above. The plaintiffs, petitioned, praying that the defendant be adjudged in contempt for so doing. After hearing, a decree was entered dismissing the petition, and the plaintiffs appealed.

No infringement of the plaintiffs’ right is claimed except the bare use of the name in the form given. Such use was not in violation of the injunction. The plaintiffs concede that if the order of words had been reversed, the defendant would have been within his rights. Martin v. Bowker, 163 Mass. 461. But the mere sequence of words cannot affect the result. It does not appear that the words designating succession were so placed or exhibited as to be likely to deceive or mislead, or that any one was in fact deceived or misled thereby. The word “successor” was on the same line as, and equally prominent with, the name as to the use of which the plaintiffs complain. Hence the petition rightly was dismissed.

Case remanded to the Superior Court.