Cosby

Defendant’s demurrer to the complaint was sustained without leave to amend and plaintiff appeals from the judgment entered in defendant’s favor. The action was commenced to recover the sum of $561.76, alleged to be the balance due on a conditional sale contract by which plaintiff’s assignor, the Mutual Refining Company, sold to defendant a pump and certain other gasoline service station equipment. Defendant paid the sum of $15.00 upon the execution of the contract and agreed to pay the balance of the purchase price at the rate of $15.00 per month. The contract contained the provisions which are usually found in conditional sales contracts. Most of the provisions are contained in 12 enumerated paragraphs. For the purposes of this decision it will not be necessary to set forth more than the first seven, which are as follows:

In sustaining the demurrer the trial court was doubtless of the opinion that the contract was in restraint of trade and therefore unenforceable. After discussing the case of Coombs v. Burk, 40 Cal. App. 8 [ 180 Pac. 59 ], in which a similar provision was held to be unenforceable when inserted in a contract by a public service corporation, appellant states in…