Bergum v. Weber

NOURSE (Paul), J. pro tem.

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Plaintiff Bergum appeals from a judgment of the trial court dismissing this action after the defendant’s general demurrer to the second amended complaint had been sustained without leave to amend.

By his second amended complaint plaintiff seeks to enjoin defendant from future unfair competition and to recover damages sustained because of such alleged acts by defendant in the past.

The facts alleged in the second amended complaint, which we must accept as true, may be summarized as follows: For many years prior to December 31, 1952, plaintiff and defendant had been engaged as partners in the manufacture and sale of loop and wire ties. They had conducted their business under the name of 1 ‘ General Shipping Room Supply Co. ’ ’ and under that name had acquired many valuable customers. On December 31, 1952, plaintiff and defendant entered into an agreement in writing by the terms of which defendant sold and transferred to the plaintiff J. 0. Bergum, E. E. Ewing and Edythe Ewing, all of his right, title and interest in the partnership and its assets, including specifically the goodwill and name of the partnership. By the terms of the agreement the defendant expressly covenanted that he would not for a period of one year directly or indirectly engage in the manufacture or sale of loop and wire ties in the city of Los Angeles.

The purchasers continued the business conducted by the former partnership, until January 18, 1953, at which time they formed a limited partnership under the name acquired from the defendant. Appellant is the general partner and the plaintiffs Ewing the limited partners in this partnership.

The business, specifically including its goodwill, was trans

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ferred to the new partnership and it has carried on the business.

After the expiration of the year during which defendant had covenanted not to engage in a competing business he then engaged in the same business as that formerly engaged in by the partnership in which he had sold his interest. For many months immediately prior to the commencement of this action he solicited, and unless restrained will continue to solicit, many of the customers of the former partnership who had remained customers of the new partnership, to purchase from him wire ties and loops identical with those manufactured and sold by the limited partnership. By virtue of such solicitation defendant has sold said articles to many of -plaintiff’s customers and except for such solicitation plaintiff would have made those sales and realized a profit therefrom.