Levitsky v. Johnson

California Supreme Court Jul 1, 1868Published

Before: Sprague

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Holding. The court held that the defendants did not breach their non-compete obligation because their incidental and casual actions did not violate the parties' original intent to prevent the establishment of a rival business.

Issues

Whether the trial court abused its discretion in denying a new trial based on newly discovered cumulative evidence.
Whether the defendants' actions constituted a breach of the covenant not to engage in the business of selling merchandise within a six-mile radius.

Disposition. affirmed

Quotations verified verbatim against the opinion

“A party is presumed to know when he is ready for trial upon the main essential issues involved, and he cannot be allowed a new trial after having submitted his case upon such testimony as he thought proper to introduce”

“Courts are bound to give to the words a reasonable construction, with a view to arrive at the intent and meaning of the parties; and this must be ascertained before it can be determined whether the breach had taken place.”

“Applying the above facts to the conditions of respondents’ bond, as understood and intended by the parties at the time of its execution, we fail to discover any real breach on the part of respondents or either of them.”

Synopsis

Newly Discovered Evidence as a Ground for New Trial.—Newly discovered evidence, when cumulative merely, furnishes no ground for a new trial; at least unless it clearly appears that its production would have changed the result, and that the strictest diligence would not have enabled the moving party to procure the same at the trial.

What Constitutes a Breach of a Covenant.—To entitle a party to recover the penalty of a bond given for the faithful performance of a covenant, in an action instituted for that purpose, it is not alone sufficient to show a technical breach of its literal terms, but upon a reasonable interpretation of the intent and meaning of the covenant, to be ascertained from all its terms, it must likewise appear that some substantial right, guarantied thereby, has been infringed, or some of its purposes defeated.

By the Court, Sprague, J.: This is an appeal from an order denying a new trial, and from the judgment; also, from an order discharging plaintiffs’ attachment.

The grounds upon which the motion for a new trial was based are:

1st—Hewly discovered evidence, etc.

2d—Insufficiency of the evidence to justify the judgment, and that it is against law.

3d—Errors of law occurring at the trial, and excepted to by plaintiffs’ counsel.

Upon the first ground, the newly discovered evidence, as contained in the affidavit of Selia Feliz Higuera, is only cumulative upon the main issue, to which the principal part of plaintiffs’ evidence was directed on the trial. A party is presumed to know when he is ready for trial upon the main essential issues involved, and he cannot be allowed a new trial after having submitted his case upon such testimony as he thought proper to introduce in support of those issues of fact, by a showing that he had subsequently discovered additional pertinent evidence upon the same issue, unless it is clear that such evidence would change the result, and that the strictest diligence would not have enabled him to procure the same on the trial. We do not, in this case, think the Court below abused its discretion in refusing a new trial on this ground.

The third ground of the motion is, errors of law occurring at the trial, assigned as follows: First—In refusing to permit the questions asked of the witness Owen on cross examination. Second—“ In excluding the testimony of Johnson as to his admission that he had sold goods on Sunday, the 28th day of October, 1866, and had pleaded guilty in a [44]prosecution against him therefor, and had paid the fine inflicted.”

The Court was clearly right in sustaining defendants’ objections to the questions propounded to each of the witnesses.

The second ground of motion for a new trial involves two questions:

First—Are the findings of the Court justified by the evidence as found in the record? and, ’

Second—If the evidence is sufficient to sustain the findings, then do the facts as found in judgment of law constitute a breach of the covenant sued upon ?

Levitsky v. Johnson

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