( Dodge Stationery Co. v. Dodge (1904) 145 Cal. 380, 387 [ 78 P. 879]; Russell v. Russell (1918) 39 Cal.App. 174, 176-177 [ 178 P. 307] ["We think the good will of a business is something inseparable from the ownership thereof. The goodwill of a business cannot be conveyed by one party, while the business to which it attaches is owned by another party" (citing Dodge Stationery Co. v. Dodge, supra)]; Haas v. Hodge (1959) 171 Cal.App.2d 478, 482 [ 340 P.2d 632] [covenant not to compete held unenforceable as included in a professional-association contract which bore "most of the indicia of an employment agreement"]. See § 14100;Mahlstedt v. Fugit (1947) 79 Cal.App.2d 562, 566 [ 180 P.2d 777].

However, a person bound by such a covenant must be a bona fide partner. (See Bosley Medical Group v. Abramson (1984) 161 Cal.App.3d 284, 290 [ 207 Cal.Rptr. 477]; Hass v. Hodge (1959) 171 Cal.App.2d 478, 481 [ 340 P.2d 632].) In Bosley Medical Group an employer attempted to come within the literal terms of section 16601 by providing its employees with a nominal number of its shares which they were compelled to sell upon termination of their employment.

) Agreements which enable the parties to control the market or make one party unable to practice a trade are unenforceable. ( Overland Pub. Co. v. H.S. Crocker Co. (1924) 193 Cal. 109, 112 [ 222 P. 812] [association of printers controlled over 90 percent of local market]; Coombs v. Burk (1919) 40 Cal.App. 8, 10 [ 180 P. 59] [utility customers forced to buy all gas if appliances connected by utility]; Morey v. Paladini (1922) 187 Cal. 727, 737 [ 203 P. 760] [exclusive right to sell lobsters from Mexico during season when no lobsters are taken in California waters]; Hunter v. Superior Court (1939) 36 Cal.App.2d 100, 113 [ 97 P.2d 492]; Haas v. Hodge (1959) 171 Cal.App.2d 478, 482 [ 340 P.2d 632] [prohibition against engaging in medical practice within 25 miles of prior partnership office without payment for good will]; Beatty Safway Scaffold v. Skrable (1960) 180 Cal.App.2d 650, 652, 656 [ 4 Cal.Rptr. 543] [exclusive scaffolding sales agreement in two counties for three years after termination of agreement without payment for good will].) "The modern trend of authorities . . . is to construe such statutes [such as Bus.

As was stated in Greene v. Brooks, 235 Cal.App.2d 161 at pp. 165-166 [ 45 Cal.Rptr. 99]: "The ultimate test of the existence of a partnership is the intention of the parties to carry on a definite business as coowners. Such intention may be determined from the terms of the parties' agreement or from the surrounding circumstances ( Page v. Page, 199 Cal.App.2d 527 [ 18 Cal.Rptr. 897]; Haas v. Hodge, 171 Cal.App.2d 478 [ 340 P.2d 632]; Gardiner v. Gaither, 162 Cal.App.2d 607 [ 329 P.2d 22]; Wurm v. Metz, 162 Cal.App.2d 262 [ 327 P.2d 969]). A partnership need not be evidenced by writing never inserted in the blank space provided therein.

[1] The ultimate test of the existence of a partnership is the intention of the parties to carry on a definite business as coowners. Such intention may be determined from the terms of the parties' agreement or from the surrounding circumstances ( Page v. Page, 199 Cal.App.2d 527 [ 18 Cal.Rptr. 897]; Haas v. Hodge, 171 Cal.App.2d 478 [ 340 P.2d 632]; Gardiner v. Gaither, 162 Cal.App.2d 607 [ 329 P.2d 22]; Wurm v. Metz, 162 Cal.App.2d 262 [ 327 P.2d 969]). [2] A partnership need not be evidenced by writing ( Calada Materials Co. v. Collins, 184 Cal.App.2d 250 [ 7 Cal.Rptr. 374]). [3] It is immaterial that the parties do not designate the relationship as a partnership or realize that they are partners, for the intent may be implied from their acts ( Constans v. Ross, 106 Cal.App.2d 381 [ 235 P.2d 113]; Singleton v. Fuller, 118 Cal.App.2d 733, 743 [ 259 P.2d 687]). [4] Some degree of participation by partners in management and control of the business is one of the primary elements of partnership ( Rosenberg v. Broy, 190 Cal.App.2d 591 [ 12 Cal.Rptr. 103]). [5] The trial court properly concluded from the parties' conduct and oral understandings that although a written partnership agreement never materialized, they were nevertheless associated as partners in the operation of the Prunedale Club.

In addition, the California Civil Code adopts the rules of the common law of England, so long as those rules are not inconsistent with express statutory or constitutional provisions of California or the United States. Cal.Civ. Code § 22.2. Sound/City and Soul entered into a bilateral contract, that is, a contract by which each party received a promise to do some act in exchange for his promise to do another act. Generally, one party to a bilateral executory contract may rescind the contract due to a substantial nonperformance or breach of his promise by the other party. Sobelman v. Maier, 203 Cal. 1, 262 P. 1087 (1927); Haas v. Hodge, 171 Cal.App.2d 478, 340 P.2d 632 (Cal.App. 2d Dist. 1959). The California Civil Code provides the specific grounds for rescission of a contract:

Defendant in his brief states: "* * * a professional man who sells his practice and his goodwill may agree not to compete, if there is a consideration and a legitimate sale of goodwill involved." Then he goes on to reassert that there was no "legitimate" sale of goodwill by virtue of Article XXI of the Articles of Association because technically Dr. Jacobson had no goodwill to sell, and was paid nothing for it. Defendant cites Haas v. Hodge, 171 Cal.App.2d 478, 340 P.2d 632, 635. California had identical statutes to Montana's.