85 P. 162 | Cal. Ct. App. | 1906
Action for damages. Findings and judgment in favor of plaintiff for $500, from which defendant appeals. The complaint, the allegations of which were by the trial court found to be true, alleges the sale by defendant and purchase by plaintiff in 1886 of a stock of second-hand furniture, together with the goodwill, under a written agreement that defendant should not engage in the occupation of keeping a second-hand store in the town of San Bernardino so long as plaintiff should continue in such business, upon default of which defendant should pay to plaintiff the sum of $500. It *337 is further alleged that plaintiff is, and ever since such sale has been, engaged in such business. That defendant, in 1903, entered into and engaged in the second-hand business in said town, to plaintiff's damage in the sum of $500.
The principal contention of appellant is that the goodwill was not sold under the terms of the written contract, which only specified that the sale was of "all my right, title and interest in and to the goods, wares and merchandise in my storeroom," etc., excepting certain articles specified, coupled with an agreement that the seller should not enter into or engage in the business or occupation of a second-hand dealer in the town of San Bernardino so long as the buyer should continue in business. We are of opinion that, by a fair interpretation of this entire agreement, it indicates upon its face the sale of a business. The sale of the contents of a store amounts to a sale of the store. The subsequent provision by which the seller agrees not to engage in the secondhand business accentuates the correctness of this interpretation. Section
We think there was no error in the admission of the evidence excepted to, which was all received in explanation of the circumstances under which the contract was made and in relation to the subject matter of the contract, and the tendency of which was not to create a new contract or to enlarge the terms of the original written contract. There is no point made upon this appeal, nor in the court below, of the insufficiency of the complaint by reason of the absence of the allegation of nonpayment of the damages, and the same is, therefore, not considered.
We perceive no error in the record, and the judgment is ordered affirmed.
Gray, P. J., concurred.
Smith, J., concurred on the authority of Streeter v. Rush,