Robinson v. Boulevard Express, Inc.

BARNARD, P. J. This is an action for damages for breach of a contract. For some time prior to August, 1929, the plaintiff Robinson and the defendant Case, as co-partners operating under the fictitious name of “C. & R. Transfer”, had been engaged in a local transfer and trucking business in the city of San Diego, and the Boulevard Ex[493]press, Inc., which will he referred to as the appellant, had been operating a common carrier transportation service by truck between Los Ángeles and San Diego. On August 31, 1929, these parties entered into a contract under the terms of which the copartners were to pick up and deliver to or from appellant’s depot all freight, either going out of or coming into San Diego over its lines, at an agreed compensation. The term of the contract was to be ten years, with the provision that either party should have the right to renew the same for a further period of ten years. By one paragraph of the contract the copartners agreed “not to enter into any contract or agreement to, nor to, pick up or distribute freight or express matter for any other truck transportation company, person, firm, or corporation engaged in the transportation of freight or express matter in competition with” the appellant.

On September 1, 1931, the copartnership was dissolved and Case continued business in San Diego under the old name of C. & R. Transfer, while Robinson began a similar business under the name of “Arrow Transfer”. Under the terms of the dissolution agreement Robinson assumed the contract with the appellant. About the middle of October, 1931, Case, operating under the old name of C. & R. Transfer, entered into an agreement to collect and deliver freight for a corporation named California Merchants Association, Ltd., which was also engaged in the - business of transporting freight between Los Angeles and San Diego in competition with the appellant. The first freight thus collected and delivered by Case was shipped on October 27, 1931. On November 1, 1931, the appellant sold its assets and business to the Motor Freight Terminal Company and for four months thereafter that company used the services of Robinson in delivering and collecting freight in San Diego, paying the same compensation which he had theretofore received.

On March 1, 1932, the Motor Freight Terminal Company notified Robinson that his services would no longer be required and this action followed. Case, refusing to join as a plaintiff, was made a defendant. The complaint alleged, among other things, that the plaintiff for and on behalf of the copartnership had, since September 1, 1931, up to February 29, 1932, performed each and all of the obligations to be performed by Case and Robinson under the terms of