106 Cal. 332 | Cal. | 1895
This is an action to restrain the defendant from carrying on the business of searcher of records, or abstracter, in the county of Sonoma. An injunction as prayed for was issued by the trial court, and an appeal has been taken from the judgment and from the order denying a new trial.
The cause of action is based upon a certain contract entered into between plaintiff and one Brown upon the one side, and defendant Nagle upon the other. At the date of the contract both plaintiff and defendant were engaged in the business of abstracting in the county of Sonoma, and, in consideration of the sum of seven thousand dollars, Nagle transferred to Ragsdale and Brown the personal property then used by him in the business, also the goodwill; and he further covenanted that he would not carry on the business of searcher of records in Sonoma county, or the business of conveyancing in the city of Santa Rosa, so long as either Ragsdale or Brown should carry on a like business in said county. In accordance with the terms ef his agreement defendant ceased business for the time being, but some months thereafter reentered the field, and was actively engaged in the abstract business at the time this action was begun. Defendant denies that he has violated the terms of his agreement, and justifies his acts upon the plea that neither plaintiff
1. The court found that during these times plaintiff had continuously carried on the business of making abstracts, searching records, and conveyancing in Son o ma county, and this finding meets with our approval. The evidence discloses that Ragsdale did business under the name of the Sonoma County Abstract Bureau prior to its incorporation, and that it was incorporated by him for the sole purpose of securing funds by placing the stock as collateral. He subscribed for all the stock save forty shares, which passed to the other four directors without consideration, they being accommodation directors only; that during this time, and up to the date of the aforesaid contract with the defendant, plaintiff had full and entire charge of the business, hired, paid, and discharged employees, appropriated the receipts, accounted to nobody, did not consult the directors, and in every way carried on the business as an owner and proprietor. This was all done, not only without objection by the directors of the corporation, but with their knowledge and consent. As far as conducting the business was concerned, the corporation was entirely passive, and, judged by the evidence, it certainly was a matter
2. It is claimed that the contract is void because it goes beyond the scope of the law in certain particulars. For present purposes only, let us concede that the contract is broader in certain respects than the law; still, it is entirely valid in all those particulars in which it comes within the provisions of .the law. (Brown v. Kling, 101 Cal. 295; City Carpet etc. Works v. Jones, 102 Cal. 506.)
3. Section 1674 of the Civil Code says that one who sells the goodwill of a “ business” may agree with the buyer to refrain from carrying on a similar “ business.” It is now claimed that abstracting is not a business, but a profession or trade, and that, therefore, the provisions of the code do not apply to the present case. It is sufficient to say the section is broad enough to bring the present case within its scope. As to the meaning of the
For the foregoing reasons the judgment and order are affirmed.
Harrison, J., and Van Fleet, J., concurred.