A petition for hearing was granted for the purpose of giving further consideration to the contention that the contract sued on was void under section 1673 of the Civil Code. Upon such further consideration we adopt as a portion of the opinion of this court the opinion of the District Court of Appeal prepared by Mr. Presiding Justice Grail as follows:

The defendants particularly rely on Morey v. Paladini, 187 Cal. 727 [ 203 Pac. 760 ], and Chamberlain v. Augustine, 172 Cal. 285 [ 156 Pac. 479 ], as compelling a contrary conclusion on the question whether the agreement is in restraint of trade. In Morey v. Paladini, supra, the contract was that the plaintiff’s assignor was to deliver to the defendant at San Diego five tons of live and boiled lobsters each week during the “closed” season between April 2, 1917, and October 15, 1917; and the defendant was granted the exclusive right to sell the lobsters in a portion of California, and in Oregon, Washington and Nevada. The defendant refused shipments after May 15th. Judgment for the plaintiff was reversed. The ground of the reversal was that the evidence showed that the purpose of the plaintiff’s assignor was to control the en tire shipment of lobsters into the territory during the season noted, and that the reason for the refusal of the defendant to abide by the contract was the failure of the plaintiff’s assignor to obtain that control of the fisheries and the shipments, as a consequence of which the market became overstocked. It was held to have been conclusively established by the evidence that in the inception of the transaction it was contemplated by the parties that the contract was one which would result in at least a partial restraint of trade. The facts concerning the real intent of the parties were thus brought to light upon the framing of the issues of fact and a. trial on the merits.

The purport of the agreement in the case of Chamberlain v. Augustine, supra, as interpreted by the court, disclosed a contract directly within the contemplation of said section 1673. The defendant, upon the sale of certain corporate stock by him, had agreed not to engage in a business to compete with the corporation’s business within a three-year period. It was held that the sale of stock was not a sale of the good will and did not bring the agreement within the exception of section 1674 of the Civil Code.

Likewise in Endicott v. Rosenthal, 216 Cal. 721 [ 16 Pac. (2d) 673 ], the facts surrounding its execution showed the contract to be part of a scheme to restrain competition in the business of clothes dyeing and cleaning in Los Angeles and Orange Counties.

A distinction between contracts tending solely to promote the business of the parties to the contract and those, such as involved in Morey v. Pdladini, supra, wherein a similar object is designed to be accomplished by stifling competition and securing a monopoly, is recognized in Associated Oil Co. v. Myers, 217 Cal. 297 , at page 304 et seq. [ 18 Pac. (2d) 668 ]. In that case the defendant had agreed to sell at retail on premises leased to him by the plaintiff, only the petroleum products vended by the plaintiff. The contract was held to be valid. Any inconsistent announcement made in the case of Coombs v. Burk, 40 Cal. App. 8 [ 180 Pac. 59 ], also relied upon by the defendant herein, was rejected as “not controlling”.

The decisions in this state have recognized and applied the distinction made by authority elsewhere that if the public welfare be not involved and the restraint upon one party be not greater than protection to the other requires, the contract will be sustained although it in some degree may be said to restrain trade. (Associated Oil Co. v. Myers, supra, p. 306 ; D. Ghirardelli Go. v. Hunsicker, 164 Cal. 355 [ 128 Pac. 1041 ]; Grogan v. Chaffee, 156 Cal. 611 [ 105 Pac. 745 , 27 L. R A. (N. S.) 395]; Herriman v. Menzies, 115 Cal. 16 [ 44 Pac. 660 , 46 Pac. 730 , 56 Am. St. Rep. 81 , 35 L. R. A. 318]; Twomey v. Peoples’ Ice Co., 66 Cal. 233 [ 5 Pac. 158 ]; Schwalm v. Holmes, 49 Cal. 665 ; Noble v. Reid-Avery Co., 89 Cal. App. 75 [ 264 Pac. 341 ]; Appalachian Coals, Inc., v. United States, 288 U. S. 344, 360, 361 [53 Sup. Ct. 471, 77 L. Ed. 825 ]; Board of Trade v. United States, 246 U. S. 231, 238 [38 Sup. Ct. 242, 62 L. Ed. 683 , Ann. Cas. 1918D, 1207]; United States v. American Tobacco Co., 221 U. S. 106, 179, 180 [31 Sup. Ct. 632, 55 L. Ed. 663 ]; Gibbs v. Baltimore Gas Co., 130 U. S. 396, 409 [9 Sup. Ct. 553, 32 L. Ed. 979 ]; Peerless Pattern Co. v. Gauntlett Dry Goods Co., 171 Mich. 158 [ 136 N. W. 1113 , 42 L. R. A. (N. S.) 843], and cases cited in note; J. W. Ripy & Son v. Art Wall Paper Mills, 41 Okl. 20 [ 136 Pac. 1080 , 51 L. R. A. (N. S.) 33].)

In Grogan v. Chaffee, supra, at page 615, it was noted that the provisions of the code sections here involved must be construed in the light of such well-settled principles.

We conclude that the complaint in the present case alleges a contract which on its face discloses merely an intent to provide for the promotion of the business of the defendant in the sale of warehouse receipts issued by it on its stores of bourbon whiskey. It may not be supposed that the promotion of sales to investors by the plaintiff exclusively, in the territory designated of none other than bourbon whiskey storage receipts issued by the defendant, would have any tendency to stifle competition or create a monopoly in that class of commodity. Alone and in the absence of an attack upon the validity of the apparent purpose of the contract, it must be considered valid. (Pacific Factor Co. v. Adler, 90 Cal. 110, 121 [ 27 Pac. 36 , 25 Am. St. Rep. 102 ].) The contract alleged is nothing more than an attempt by the parties to create a market, within a small designated territory, for the warehouse receipts of bourbon whiskey of one firm to investors in that type of security. Such a limited restriction does not appear to affect the public interests and is obviously designed only to protect the respective parties in dealing with each other. Furthermore, it does not appear that it was the intent of the parties to control by monopoly the market price of the securities or in any manner to interfere with the normal fluctuations resulting from the law of supply and demand. The practical effect of the contract was to make the plaintiff the exclusive agent of the defendant in the territory assigned. In other words the plaintiff was in reality employed by the defendant to develop a market for the sale of the commodity within the limited territory. The special character of the commodity indicates that the price in the market might tend to fluctuate from day to day. It should also be noted that under all the circumstances the parties no doubt intended to leave the matter of the price to be controlled by the existing market conditions at the several times of sale by the defendant to the plaintiff. This apparent intention, therefore, should govern in arriving at the conclusion that the contract alleged was complete and valid although no price was stated.

The judgment is reversed.

Seawell, J., Waste, C. J., Langdon, J., and Nourse, J., pro tern., concurred.