Diller v. Schindler

TYLER, P. J.

Action for damages for breach of contract in the sale of a busiuess. In January, 1924, Diller, the

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plaintiff and respondent herein, purchased from defendant and appellant, Charles Schindler, a “Kosher” restaurant on Golden Gate Avenue, San Francisco, for the sum of fifteen hundred dollars. A bill of sale was executed in an attorney’s office and delivered by Schindler to Diller. The instrument disposed of the going business, the goodwill, cash register, furnishings, and cooking utensils. Some six months later Schindler purchased a going restaurant of the same character, which was situated on an upper floor two doors from the restaurant he had sold to Diller. The latter thereupon brought this action, praying for damages and an injunction restraining defendant from conducting and carrying on his newly acquired business. The action was based upon an alleged collateral agreement made at the time of the sale by Schindler .to plaintiff of the business above referred to, under which Schindler was said to have promised and agreed that he would not at any time conduct any restaurant in the neighborhood of the business he had sold. Defendant Schindler by answer denied

inter alia

the making of any such agreement, and as a further and separate defense set up the plea of the statute of frauds, claiming that an agreement of the character relied upon by plaintiff should be in writing. It was stipulated at the trial that if any such agreement was made by Schindler, it was a verbal one between the parties. There was offered by the plaintiff and received, oral evidence to the effect that at the time of the sale Schindler had agreed not to open a restaurant within ten blocks from the place of business he was selling. Defendant admitted that the subject of incorporating a clause of this character in the bill of sale was discussed just before the instrument was executed, as plaintiff wanted it in writing, but defendant claimed that he refused to enter into any such agreement. Defendant’s view would seem to be confirmed by the evidence, which shows that the subject was brought up by the attorney who drew the bill of sale, but, as stated, no mention of the matter appeared in that instrument. However this may be, judgment went for plaintiff for a permanent injunction and damages were assessed in the sum of one thousand dollars. From this judgment defendant Schindler appeals. Under plaintiff’s pleadings and the proof adduced to support them it is clear that the judg