Crutchett v. Lawton

PULLEN, P. J. This is an action restraining defendant from practicing medicine and surgery in the counties of Sutter and Yuba. An injunction as prayed for was issued [412]by the trial court, and an appeal therefrom brings the matter before us for consideration.

The cause of action is based upon a contract entered into between Dr. F. B. Lawton and Dr. William L. Crutchett, wherein for a valuable consideration, Dr. Law-ton, ' the appellant herein, sold to Dr. Crutchett, the respondent, all of his office equipment, medical business and fixtures, including the goodwill of the business, and further covenanted and agreed that he would not, for.a period of five years immediately following the execution of the agreement, open offices within the counties of Sutter or Yuba, for general or special practice of medicine or surgery. For over a year appellant ceased to practice his profession in the counties named, and thereupon he again opened an office in the city of Marysville, county of Sutter, for the practice of medicine and surgery, and was.so doing at the time of the filing of the complaint.

At the hearing appellant admitted all of the allegations of the complaint, but claimed and now claims the covenant above mentioned was and is void under section 1673 of the Civil Code. Section 1673 and section 1674 of the Civil Code, which pertains to contracts in restraint of trade, read as follows:

“Section 1673. Every contract by which anyone is restrained from exercising a lawful profession, trade or business of any kind, otherwise than is provided by the next two sections, is to that extent void.

“Section 1674. One who sells a good-will of a business may agree with the buyer to refrain from carrying on a similar business within a specified county, city, or a part thereof, so long as the buyer, or any person deriving title to the good-will from him, carried on a like business therein.”

It is conceded by app el] ant that the word “business” in its general sense is broad enough to include any activity for profit or gain, that engages one’s time and therefore would include a profession, but claims that the legislature in stating the rule in section 1673 of the Civil Code referred to “profession, trade or business”, whereas the exception as set forth in section 1674 deliberately limited its effect solely to “business”. However, the Supreme Court in the case of Ragsdale v. Nagle, 106 Cal. 332 [39 Pac. 628], had this question before it, and there held adversely to appel