Shafer v. Sloan

ALLEN, J.

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

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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 1647, Civil Code, provides: “A contract may be explained by reference to the circumstances under which it was made, and the matter to which it relates.” Under this provision, if any uncertainty exists as to the intent, the oral proof adduced upon the trial—and which, in our opinion, was properly admitted—demonstrated that the defendant was seeking to purchase an established second-hand store business in the town of San Bernardino. If, then, the contract related to the sale of a business, such contract has received a construction in

Streeter

v.