¶1 (concurring-dissenting).
¶2 I concur in most of what is said in the prevailing opinion, but must dissent from some of the conclusions reached. Perhaps I can best set forth my position by indicating the *91 points on which I disagree. I agree that an order made in open court and entered in the minutes is an order upon which contempt proceedings for disobedience to such order may be based if the contents of the order was properly brought to the attention of the party bound thereby. However, the statement in the prevailing opinion:
“Since we hold that the order in the form given by the court was a valid, lawful order it follows that defendant’s disobedience is a contempt of court,”
¶3 is too broad. To be a contempt disobedience to an order must be wilful and contumacious; the party must have the ability to obey the order and intentionally or deliberately fail to do so. Then the opinion says:
“theoretically at least, Mrs. Foreman was in contempt of court.”
¶4 It then says that she delivered the bonds to the office of her counsel and that he is in contempt for not delivering them to defendant. If she were to personally deliver them to defendant or his counsel, then Barclay might be guilty of a breach of faith or trust to her, but he would hardly be guilty of contempt of the court’s order to her. If on the other hand, she was within her rights in delivering them to Barclay for delivery, and it was he who was responsible for nondelivery, as per the court order, then Mrs. Foreman could not well be held in contempt. In view of the record showing that Barclay told the court that he, Barclay, could not himself make any delivery of the bonds on the 15th, and the court replied:
“I will order the plaintiff to turn the bonds over today. I don’t care who does it. … I don’t see why in ten minutes she can’t have the bonds in her hands and in the hands of this gentleman [evidently defendant],”
¶5 the court evidently intended Mrs. Foreman should be personally responsible for the delivery of the bonds. However to put her in contempt the court must find that she wilfully and contumaciously failed to deliver them. In view *92 of the position taken by the trial court with reference to Barclay, and the intimations and implications of the prevailing opinions here, I have difficulty in seeing how Mrs. Foreman can be said to have been wilful and contumacious in failing to deliver the bonds. For this reason as well as those given by Mr. Justice PRATT I agree the damage judgment of $1518.75 must fail. I also think the contempt judgment and sentence must fail. As to all other matters I concur.