Rossiter v. Thompson

This is' an appeal from a judgment in favor of plaintiff and against defendant, arising out of an action brought on an alleged breach of contract.

Each of the parties is a physician and surgeon. From the record herein it appears that for several years prior to October 1, 1918, defendant had been engaged in the prac

“That on said 14th day of October, 1918, said parties entered into an agreement wherein and whereby plaintiff agreed to surrender and abandon his said residence and practice in said town of Brea and to take up his residence in said city of Burbank, and defendant agreed to employ plaintiff to take and assume full management and control of said defendant’s practice and to maintain, carry on and conduct the same for the period of one year beginning October 14, 1918; and it was further agreed that plaintiff should receive as compensation a portion of the income derived from said practice computed as follows, to-wit: The necessary operating and running expenses connected with said business, together with plaintiff’s house rent, and also together with a sum of money sufficient to pay such income tax as should be levied upon the income derived during said period, should be first deducted from the income of said practice during said period and of the balance remaining plaintiff should receive ninety (90%) per cent and defendant ten (10%) per cent. That by the terms of said agreement it was further agreed that defendant should not be obligated to render any services in the prosecution of said practice for one year and should be privileged to remain away from said practice for the entire term of said agreement ; and that defendant would allow plaintiff to remain and continue in the full management and control of said practice for said period and upon the terms above mentioned.”

The terms of the agreement were complied with by each of the parties to the agreement until on or about the four

Defendant’s first contention is that the complaint does not state facts sufficient to constitute a cause of action. The basis of the objection is that, in addition to stating what is concededly unobjectionable as a cause of action, the complaint contains matter which it is claimed precludes plaintiff from a recovery of any judgment against defendant. The language of the complaint to which appellant’s attack is directed is as follows: ‘ That on or about the 14th day of October, 1918, it was agreed by said parties that plaintiff should surrender and abandon his said residence and practice in said town of Brea and take up his residence in said city of Burbank; that plaintiff should assume and undertake the burdens and responsibilities of and conduct and carry on the said practice of defendant for the ensuing year, and give to the same such time and effort as should be necessary, and that defendant should absent himself from said city of Burbank and the immediate vicinity thereof, and abandon his said practice and patients for said period of time, and allow and permit plaintiff to remain in the sole and exclusive management and control thereof for said period of time, so far as concerned the activities and professional efforts of defendant.”

[1] Appellant urges that the allegation that it was agreed “that defendant should absent himself from said city of Burbank, . . . and abandon his said practice and patients for said period of time” presents a situation inimi

In the case of City Carpet etc. Works v. Jones, 102 Cal. 506 [ 36 Pac. 841 ], there was a sale of a business, including its goodwill, within the counties of San Francisco, Alameda, and San Mateo. The statute to which reference has been made permits a sale of “the goodwill of a business . . . within a specified county.” In holding that the covenant was divisible and that it might be enforced as to that part which was not in violation of the terms of the statute, the court said: “In this case three counties are named in the contract, and I see no difficulty in upholding it as to the county in which the business was conducted, and declaring it void as to the other two counties. The boundaries of each are definite, and fixed by law. Neither includes any part of the others. If the city and county of San Francisco had alone been named the contract would have been good. How the naming of the counties of Alameda and San Mateo in addition, such addition being void, could affect that which otherwise is valid, the void part being capable of exact ascertainment and separation, I do not comprehend, .and especially when such separation not only does no violence to the language of the statute, but does justice between the parties and promotes the public interests, and conforms to the obvious intention of the statute, and it is only to the ‘extent’ that the contract departs from the provisions of the code that it is declared void.” So in the case at bar, the void part of this contract (assuming it to be such) is “capable of exact ascertainment and separation”; and “such separation does no violence to the language of the statute,” and certainly does justice between the parties.

In the case of Ragsdale v. Nagle, 106 Cal. 332 [ 39 Pac. 628 ], it is held (syllabus) that “where a contract for the sale of a goodwill of a business, and to refrain from carrying on a similar business, goes beyond the scope of the law in certain particulars, it is nevertheless valid in all those particulars in which it falls within the provisions of the law.”

Section 1599 of the Civil Code provides that “where a contract has several distinct objects, of which one at least is lawful, and one at least is unlawful, in whole or in part,

Appellant’s second contention is that the contract as set forth in the findings is illegal. No authorities are cited to support the claim, and this court is unable to discover any defect therein which would result in a legal declaration of the nature of that suggested by appellant.

It is next urged by appellant that there is a material variance between the pleadings and the findings, and that the court erred in not finding upon the issue as to whether or not there was any agreement that defendant should absent himself from the city of Burbank and abandon his practice and patients during the time covered by the contract.

[2] It will be remembered that it was plaintiff who pleaded the fact in question. Defendant answered, denying that such fact was a part of the agreement. The most that defendant could expect would be a finding in accordance with the averments of his answer. The substance of the allegations contained in the answer is that no such agreement was made. Taking defendant’s allegation at its full face value, defendant is not hurt because the court failed to find thereon, for the reason that such a finding would have eliminated all question as to the legality of the contract. [3] This was an oral agreement. The findings of the court purport to set forth the entire agreement that was entered into between the parties thereto. Necessarily everything not included within the court’s statement of what the oral agreement consisted is presumed not to have been agreed to by the parties; therefore, if any finding had been directly made on the allegation, it would necessarily have been that no such agreement was made. But assuming that had the court found directly on the matter, the finding would have been against defendant’s contention, then the

[4] Appellant further complains that the evidence was insufficient to justify the finding by the trial court as to the amount of damages sustained by plaintiff; or that defendant wrongfully and in violation of the agreement resumed the management and control of his practice and excluded plaintiff therefrom. But an examination of the record on appeal clearly shows that there was ample evidence to warrant the conclusion reached by the judge of the trial court in regard to each of such matters.

[5] Appellant’s final contention is that the court erred in refusing to grant defendant’s motion for a new trial on the ground of newly discovered evidence. The evidence which defendant claimed had been discovered after the case had' been tried was cumulative in character and went only to the point of contradicting the testimony of plaintiff. The showing as to diligence in discovering such evidence before the close of the trial was weak and altogether unsatisfactory. In circumstances such as were presented at the time the motion for new trial was considered, the decision rested entirely with the discretion of the judge of the trial court. The rule is unquestioned that unless such discretion is clearly shown to have been abused, the conclusion by the trial court is final. There is nothing in the record herein which would indicate other than that the motion for new trial was accorded a full and fair hearing on its merits and that the decision thereon by the judge of the lower court

The judgment is affirmed.

Conrcy, P. J., and Curtis, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on May 9, 1924, and a petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 9, 1924.

All the Justices concurred.