Appellant began this action seeking a declaratory judgment undеr the provisions of section 1060 of the Code of Civil Procedure. Thе defendants interposed a demurrer to the plaintiff’s complaint, which was sustained by the court without leave to amend. The apрellant thereafter made a motion to vacate -the order of the court denying the privilege to amend his complaint, whiсh motion was denied. Judgment was thereafter entered in favor of thе defendants. From this judgment the plaintiff appeals.
While ordinarily the court will permit an amendment to a complaint, this action is largely within the discretion of the court, and the filing of an amended complaint is not a matter of absolute right.
(Billesbach
v.
Larkey,
That the court did not abuse its discretion satisfactorily appears from the following résumé of the complaint and the cause of action attempted to be аlleged. The complaint alleges that certain of the defendants, on or about the 31st day of August, 1934, being a copartnership, entеred into a contract in writing with the defendant, Chester G. Mills. This contract is set forth in Exhibit “A”, attached to the complaint and made a part thereof. This contract, so far as material here, is in the following wоrds and figures:
“This agreement made and entered into this 31st day of August, 1934, by and between Power Seal Co., a copartnership, consisting of Lyle G. Jackson and N. E. Woolman, first party, and Chester G. Mills, second party,
“Witnesseth:
“That, Whеreas, first party is the inventor and manufacturer of certain merсhandise and material known as ‘Power Seal' for use in internal combustion engines; and
“Whereas, second party is desirous of undertaking thе sale, advertising and exploitation of said product;
“Now, Therеfore, in consideration of, and subject to the terms, conditions and agreements herein contained, it is mutually understood and agreed as follows:
*731 “(1) That subject to the performance of the cоnditions and covenants herein contained to be performеd by said second party, the said first party does hereby give and grant to said second party the exclusive right to purchase, merchаndise, distribute and resell the entire output and production of the factory of said first party, etc.
“(3) Second party agrees to devote his entire time and attention, and use his best efforts and endeаvors in the salo and distribution of said product, and to nationally advertise same by means of newspapers, magazines and radio, аnd to purchase from or sell for said first party at least the follоwing quantities thereof, etc.”
The foregoing excerpts from the agreement establish the contract as being one for personal services, and the cases are unanimous that an exeсutory contract for personal services involving a persоnal relation of confidence between the parties, or involving liabilities or duties, which in express terms impute or indicate reliance on the character and personal ability of the parties, cannot be assigned, nor can such a contract bе specifically enforced. (Subd. 1 of sec. 3390 of the Civil Code;
Fitch
v.
Brockman,
One or two technical points are advanced by the appеllant, but the foregoing disposes of the appellant’s cause of action.
There being absolutely no merit in the appeal, the judgment of the trial court is affirmed.
Pullen, P. J., and Thompson, J., concurred.