Cabana Nutria, Inc. v. The Way, Inc.

ASHBURN, J. Plaintiff appeals from two orders which have the effect of denying a preliminary injunction, dissolving a temporary restraining order and vacating upon the court’s own motion the entry of default of defendant, The Way, Inc.

Plaintiff seeks to enjoin performance of an agreement between defendants W. S. Curtis and Associates and The Way, Inc., which is asserted to be violative of its own rights under an existing contract between plaintiff and defendant, The Way, Inc. Plaintiff’s contract confers upon The Way, Inc. exclusive distributorship of plaintiff’s nutria animals within certain specified counties of southern Florida. The distributor is named in the document as “The Way, Inc. (Victor P. Wierwille, Pres.) dba Cabana Nutria of Southern Florida.” Paragraph 7 says: “Distributor will buy and sell Nutria supplied to him by Corporation exclusively, and will not buy or sell Nutria from any other company, corporation or individual, except the Nutria supplied by Corporation.” Giving this language universal import plaintiff claims that the contract between the Curtis company and The Way, Inc. (actually made before knowledge of plaintiff’s contract) invaded its own rights and should be enjoined as unfair competition or on some similar ground. The Curtis agreement appoints The Way, Inc. as its distributor of nutria within an exclusive territory in the western portion of the state of Ohio. The distributor therein agrees to sell only nutria supplied by Curtis.

Section 1648, Civil Code, governs this case: “However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract.” (See also Eastman Oil etc. Corp. v. Lane-Wells Co., 21 Cal.2d 872, 873 [136 P.2d 564]; Newby v. Anderson, 36 Cal.2d 463, 470 [224 P.2d 673]; Southern Cal. Gas Co. v. Ventura etc. Co., 150 Cal.App.2d 253, 257-258 [309 P.2d 849].) The language of paragraph 7 of plaintiff’s agreement cannot be fairly construed to prevent The Way, Inc., from doing business outside of Florida or to require it in Ohio or other [487]states to buy its supplies from plaintiff. These things were not within the purview of the contract. A promise to do no business outside the prescribed Florida territory, or to do no business with anyone but plaintiff in other states, cannot be implied unless it comes within one of the categories specified in Stockton Dry Goods Co. v. Girsh, 36 Cal.2d 677, 681 [227 P.2d 1, 22 A.L.R.2d 1460] : “A condition cannot be read into a contract as to which the parties might well be deemed to have remained intentionally silent. (Foley v. Euless, 214 Cal. 506, 511 [6 P.2d 956].) With citation of that and other eases, the court in Cousins Inv. Co. v. Hastings Clothing Co., 45 Cal.App.2d 141, 149 [113 P.2d 878], summarized the rules when covenants may be implied as follows:£ (1) the implication must arise from the language used or it must be indispensable to effectuate the intention of the parties; (2) it must appear from the language used that it was so clearly within the contemplation of the parties that they deemed it unnecessary to express it; (3) implied covenants can only be justified on the grounds of legal necessity; (4) a promise can be implied only where it can be rightfully assumed that it would have been made if attention had been called to it; (5) there can be no implied covenant where the subject is completely covered by the contract. ’ (See Civ. Code, § 1648.) ” Such is not the ease here. “ The purpose of a writing must be ascertained solely from a common-sense meaning of it as a whole with a view to effectuate the mutual intention of the parties.” (Broome v. Broome, 104 Cal.App.2d 148, 157 [231 P.2d 171].) The lower court correctly ruled that plaintiff is not entitled to an injunction upon the facts shown by the record herein.