Opinion
Page __
__ Cal.App.2d __258 P.2d 39MARTINEZ et al.v.MARTINEZ et al.Civ. 19256.California Court of Appeals, Second District, Second DivisionJune 16, 1953Hearing Granted Aug. 13, 1953.
Alfred Einstein, V. Lustig, National City, and Stead & Boileau, Pomona, for respondent.
George W. Trammell, Long Beach, for appellant.
[258 P.2d 40] McCOMB, Justice.
From a judgment in favor of plaintiff after trial before the court without a jury in an action to reform a written agreement for the sale of a ship supply business in San Diego County, defendant appeals.
Facts: Plaintiff alleged that on or about January 3, 1948, plaintiff and defendant entered into an oral agreement for the sale of defendant's ship supply business to plaintiff; that in said oral agreement the parties stipulated that defendant would not thereafter reengage in the same or a similar business in San Diego County while plaintiff operated the same or while any purchaser of the business from plaintiff operated it; that a written agreement later executed by the parties did not contain such restrictive covenant and that the written agreement should be reformed so as to include it.
The trial court found that all of the grounds for reformation of the written agreement existed and rendered judgment directing its reformation.
Questions: First: Was there substantial evidence to sustain the trial court's finding that:
(a) Defendant in its oral agreement of January 3, 1948, for the sale of its business agreed with plaintiff not to thereafter enter into a competitive business in San Diego County?
Yes. Plaintiff gave direct testimony that defendant at the time the oral agreement was made agreed he would not reenegage in the same or a similar business in San Diego County. This testimony sustains the questioned finding of fact. We must of course disregard all conflicting and contrary evidence.
(b) Defendant solicited plaintiff's customers?
Yes. In his answer defendant expressly admitted he had done so.* This admission sustains the questioned finding.
(c) Defendant's agreement to stay out of a similar business in San Diego 'so long as the buyer [plaintiff] or any person deriving title to the good will carries on a like business' was inconsistent with plaintiff's claim that defendant would stay out of such business for a period of 10 years?
No. Plaintiff testified as follows, 'a. * * * I said, 'Will you show me where you won't come back in the same business in San Diego County for a period of ten years?' He said, 'Right here, that means the good will, that means I won't come down forever. I am through with San Diego.' * * *'
The testimony established the fact that defendant agreed he would never reengage in a similar business in San Diego County. Section 16601 of the Business and Professions Code provides that an agreement to stay out of business must be limited to a period so long as the buyer or any person deriving title to the good will carries on a like business. Where the agreement is indeterminate, as in the instant case, it will be construed to mean the vendor is prohibited from reengaging in a like business for the period permitted by law. (Mahlstedt v. Fugit, 79 Cal.App.2d 562, 566[6], 180 P.2d 777; Gregory v. Spieker, 110 Cal. 150, 153 et seq., 42 P. 576.)
Therefore the trial court in its finding properly limited defendant's agreement to refrain from engaging in the same or a similar business for the legal period.
Second: Did the trial court's finding that the representations made by defendant were known or ought to have been known by him to be fraudulent, and that plaintiff believed [258 P.2d 41] them and in reliance thereon executed the written agreement, find support in the evidence?
Yes. The trial court found that except as found not to be true, all allegations contained in plaintiff's second amended complaint were true. Such practice though not the best is proper and has been recognized as sufficient to sustain a judgment. (Alameda County v. Crocker, 125 Cal. 101, 103 et seq., 57 P. 766.)
Paragraph II of the complaint as amended contained the following allegations which were not found to be untrue. Therefore under the rule above stated they were found to be true under the finding of the trial court:
'That the phrase 'including the good will' stated in paragraph (1) of Exhibit A attached hereto was understood by the plaintiff Leonard Martinez and the defendant Julian Martinez, the parties who executed said Exhibit A, that the phrase meant that the said defendant Julian Martinez would not re-engage in the ship supply business or a similar ship supply business, the subject of the said Exhibit A, attached hereto, in San Diego County, so long as the buyer, Leonard Martinez, or any person deriving title to the good will from him, carries on a like business therein. That by reason of the mistaken belief of plaintiff Leonard Martinez, the contract as reduced to writing did not correctly contain or set out the agreement of the plaintiff Leonard Martinez and the defendant Julian Martinez in the particulars hereinabove specified. Plaintiff Leonard Martinez alleges on information and belief that the mistake as to the meaning of the phrase as aforesaid was mutual between both plaintiff Leonard Martinez and defendant Julian Martinez; that if defendant Julian Martinez did not share the mistaken belief of plaintiff Leonard Martinez as to the meaning of said phrase as aforesaid, then defendant Julian Martinez knew of the mistaken belief of the plaintiff Leonard Martinez in that regard. That plaintiff Leonard Martinez would not have executed said Exhibit A attached hereto unless the defendant Julian Martinez did agree not to re-engage in the ship supply business, like or similar to that described in Exhibit A, in San Diego County, so long as the buyer, Leonard Martinez, or any person deriving title to the good will from him, carries on a like business therein, and that the defendant Julian Martinez knew that plaintiff Leonard Martinez would not have executed said contract as reduced to writing if both plaintiff Leonard Martinez and defendant Julian Martinez had known it did not set out the true agreement and the true intention that the parties had agreed upon as aforesaid. That if defendant Julian Martinez did not share plaintiff Leonard Martinez' mistaken belief that the actual agreement of the parties had been reduced to writing, then the conduct of the defendant Julian Martinez in failing to advise plaintiff Leonard Martinez of said Exhibit A as reduced to writing not embodying fully the agreement of the parties was wrongful and fraudulent; * * *.'
Third: Was the judgment fatally defective because the trial court found in favor of plaintiff on inconsistent causes of action, to wit, that plaintiff was guilty of fraud and also that there was a multual mistake of the parties relative to the written agreement?
No. Where there are inconsistent causes of action, each of which is supported by the evidence as in the instant case, on appeal the judgment will not be reversed because of such inconsistencies.
The rule is clearly stated in Baird v. Ocequeda, 8 Cal.2d 700, 703[5], 67 P.2d 1055, 1057 thus, 'The trial court found all of the allegations of the complaint as amended to be true. Defendants urge that the effect of this is to permit plaintiff to recover on asserted inconsistent theories of express and implied contract. Even if this be conceded, it is not fatal to the judgment. Examination of the record discloses that there is evidence to support a recovery on either theory. This being so, [258 P.2d 42] the findings on the inconsistent theory may be distregarded as surplusage. Epstein v. Grandowitz, 76 Cal.App. 29, 31, 243 P. 877.'
Affirmed.
MOORE, P. J., and FOX, J., concur.
The answer read in part as follows:
'For an answer to paragraph III of the fourth cause of action, admits that on or about the first day of November, 1949, he reengaged in the ship supply business at 512 7th Street in the City of San Diego, under the fictitious firm name of Julian Ship Provisions; admits that in the conduct of his business in the City of San Diego, California, he has solicited business from persons or firms who, at the time of such solicitation, were customers of Plaintiff, or at some time prior thereto had been customers of Plaintiff; admits that he hired Mike Mericantante and that said Mike Mericantante is working for him in connection with the business he is carrying on in the City of San Diego.'