Martinez v. Martinez

GIBSON, C. J.

-This action was brought to reform a written contract for the sale of a ship supply business so as to include a covenant by defendant seller not to re-engage in that business in San Diego County and for injunctive relief. Judgment was entered for plaintiff, and defendant appealed.

Defendant was engaged at Long Beach and San Diego in furnishing supplies to ships, and he employed plaintiff, his younger brother, to work for him in San Diego. Plaintiff offered to buy the San Diego branch of the business, and defendant agreed to sell it and not to re-enter the same business in that locality. Thereafter defendant presented a written agreement which provided for the sale of the business “including the good will” but did not contain any provision restricting him from resuming his operations in San Diego County. Plaintiff, who did not understand legal terminology, asked to be shown the provision preventing defendant from re-engaging in the business, and defendant stated that the good will provision meant that he was through with San Diego and would not come back there to work. The agreement was then signed, and about a year later defendant renewed his operations in San Diego. At the trial he denied that he made any representation to plaintiff as to the meaning of the good will provision and stated that he knew that it would not prevent him from operating in the San Diego area.

There is sufficient evidence to support the finding that the covenant not to re-engage in business was omitted from the written agreement by mutual mistake of the parties. The further finding that the covenant was omitted by reason of fraud on the part of defendant is likewise supported by

[706]

the evidence. While it is true that these findings are inconsistent because they involve different mental attitudes on defendant’s part, the inconsistency is immaterial since there is sufficient evidence to support a judgment for plaintiff on either theory. Accordingly, the finding on the theory of fraud may be disregarded as surplusage.

(Baird

v.

Ocequeda,

8 Cal.2d 700, 703 [67 P.2d 1055] ;