Diller

Action for damages for breach of contract in the sale of a busiuess. In January, 1924, Diller, the plaintiff and respondent herein, purchased from defendant and appellant, Charles Schindler, a “Kosher” restaurant on Golden Gate Avenue, San Francisco, for the sum of fifteen hundred dollars. A bill of sale was executed in an attorney’s office and delivered by Schindler to Diller. The instrument disposed of the going business, the goodwill, cash register, furnishings, and cooking utensils. Some six months later Schindler purchased a going restaurant of the same character, which was situated on an upper floor two doors from the restaurant he had sold to Diller. The latter thereupon brought this action, praying for damages and an injunction restraining defendant from conducting and carrying on his newly acquired business. The action was based upon an alleged collateral agreement made at the time of the sale by Schindler .to plaintiff of the business above referred to, under which Schindler was said to have promised and agreed that he would not at any time conduct any restaurant in the neighborhood of the business he had sold. Defendant Schindler by answer denied inter alia the making…