More v. Bonnet , 40 Cal. 251 ( 1870 )

Bhodes, C. J.,

delivered tbe opinion of tbe Court.

M. Bonnet & Co., in consideration of $750 to them paid by tbe plaintiff, and bis promissory note for $1,250, payable to them in five equal monthly installments, sold to tbe plaintiff, all tbe tools and utensils used by them in their business of asphaltum roofing and pavement-laying, a certain lot of gravel, and a good will of tbat business in all its branches; and they further promised and agreed with tbe plaintiff, tbat in case be should pay tbe several installments of tbe note, as they should become due, they “ shall not hereafter at any time engage, either directly or indirectly, in tbe said business of asphaltum roofing oa1 pavement-laying in the City and County of San Francisco, or State of Califor-ilia.” It is alleged in tlie complain!;, that the defendant was carrying on that business under the name of Bonnet & Co. The plaintiff sues to recover damages for an alleged breach of that contract, and to enjoin the defendant from carrying on that business in the City and County of San Francisco, or the State of California. The demurrer to the complaint was sustained on the point, that the contract is in total restraint of trade, and therefore void, as against public policy.

It is not doubted that the contract, so far as it relates to the whole State, is void (Wright v. Ryder, 36 Cal., 357); but it is contended that the contract restrains the exercise of the business within two distinct areas; that the contract is severable — the one part restraining the exercise of the business within the City and County of San Francisco, and the other part restraining its exercise within the State, and that, while the latter is void, the former is valid, because the limits are not unreasonable. But we are of the opinion that the contract is, in that respect, entire. ' No precise rule can be laid down for the solution of the question, whether a contract is entire or separable; but it must be solved by considering both the language and the subject matter of the contract. There were not two distinct areas, for the one included the other. The defendant’s business was not carried on in the two distinct areas, as two separate occupations, but the complaint avers that the defendant was carrying on the business in the State, and that he sold such business to the plaintiff. When the price is expressly apportioned by the contract, or the apportionment may be implied by law, to each item to be performed, the contract will generally be held to be severable; but no such apportionment can be made of this contract. When the contract provides for the restraint of the business within the State, if the mention of any subdivision of the State will make the contract severable, then it would be easy to defeat the rule prohibiting contracts in total restraint of trade by mentioning in the contract each subdivision of the State; and when it is objected that the limits are unreasonable, it will be answered that tbe plaintiff seeks to enjoin tbe defendant from pursuing tbe business, in only one of tbe cities or towns mentioned in tbe contract.

Judgment affirmed.