265 P. 372 | Cal. Ct. App. | 1928
Defendant's demurrer to the complaint was sustained without leave to amend and plaintiff appeals from the judgment entered in defendant's favor. The action was commenced to recover the sum of $561.76, alleged to be the balance due on a conditional sale contract by which plaintiff's assignor, the Mutual Refining Company, sold to defendant a pump and certain other gasoline service station equipment. Defendant paid the sum of $15.00 upon the execution of the contract and agreed to pay the balance of the purchase price at the rate of $15.00 per month. The contract contained the provisions which are usually found in conditional sales contracts. Most of the provisions are contained in 12 enumerated paragraphs. For *24 the purposes of this decision it will not be necessary to set forth more than the first seven, which are as follows:
"It is further mutually promised and agreed as follows:
"1. That the title to all of said property shall remain in Seller until the complete performance by the Purchaser of all of the Purchaser obligations under this agreement.
"2. Time is of the essence of this contract with respect to the performance of the obligations herein assumed by or imposed upon the Purchaser and acceptance of the Seller of any delinquent payments shall not constitute a waiver by the same of this provision, nor shall it entitle the Purchaser to a notice or demand before the forfeiture by the Seller for or on account of a subsequent delinquency, and should the Purchaser be in default in the performance of any of the terms or conditions hereof on his part to be performed, then and in such case the Seller shall have the right to declare immediately due and payable the entire amount of principal and interest then remaining unpaid.
"3. Said Purchaser agrees to save the Seller harmless from any and all liability, including all costs and attorney's fees, for all injury or damage to persons or property caused in any manner by the use of said property. Said Purchaser shall have no right to and shall not attempt to sell, assign, pledge, mortgage or otherwise dispose of this contract or of said personal property, or any part thereof, during the existence of this agreement, without the written consent of the Seller.
"4. The Purchaser shall be entitled to the possession of said personal property while not in default hereunder, but the loss or destruction or theft of or damage to said property from any cause shall be wholly borne by said Purchaser and shall not relieve the Purchaser from the obligation to make all or any of their payments hereunder.
"5. Said property shall be used only at the address above given, to-wit: 3724 American Ave., Long Beach, California, and not elsewhere.
"6. Said property shall never become a part of the realty upon or in which the same is placed.
"7. It is hereby understood and agreed between the parties hereto that in consideration of the purchase of the above mentioned equipment on monthly installments without interest, to proposed purchaser, that the latter shall, during *25 the period covered by the above mentioned installments, purchase his entire requirements of gasoline, and as much lubrication oil as possible, exclusively from the Mutual Refining Company of Huntington Beach, California."
[1] In sustaining the demurrer the trial court was doubtless of the opinion that the contract was in restraint of trade and therefore unenforceable. After discussing the case of Coombs v.Burk,
[2] The contract provides in its fifth paragraph as follows: "Said property shall be used only at the address above given, to wit: 3724 American Ave., Long Beach, California, and not elsewhere." Defendant argues that this paragraph is also in restraint of trade. If he is right in this contention the complaint must necessarily fall. [3] It is the policy of the law to encourage the making of contracts upon proper considerations, and contracts may not be held to be void under the section of the code above referred to unless they contain provisions which are plainly violative of sound *26
public policy. (Stephens v. Southern Pac. Co.,
The judgment is reversed, with directions to the superior court to overrule the demurrer, granting leave to the defendant to answer.
Houser, Acting P.J., and York, J., concurred.