Graca

This is an appeal taken on the judgment-roll from the judgment sustaining the defendant's demurrer *Page 297 to plaintiff's amended complaint, the order sustaining the demurrer being made without leave to the plaintiff to amend. The purpose of the action is to restrain the defendant from conducting a grocery business within a certain locality in the city of Oakland, contrary to an express covenant by him not to engage in a like business within that area. The complaint alleges that the defendant, the original owner of the business, agreed with his immediate covenantees, their executors, administrators, and assigns, not thereafter to open or conduct any other grocery store or grocery business within a certain specified limited area; that thereafter said covenantees sold and transferred the grocery store and the goodwill thereof to one Luz, and assigned and transferred to him the bill of sale and the covenant and agreement just referred to; that Luz on or about February 26, 1916, sold and delivered the said grocery business together with the goodwill thereof to the plaintiff, and assigned and transferred to the plaintiff said bill of sale and agreement of defendant. It thus appears…

The application for a hearing in this court after decision by the district court of appeal of the first appellate district is denied. The opinion is in conflict with what was said by the district court of appeal of the second appellate district as to the *Page 300 proper construction of section 1674 of the Civil Code in Johnston v. Blanchard, 16 Cal.App., at page 328 , [ 116 P. 973 ], as is shown by the opinion in this case. We are satisfied that the opinion in this case correctly states the law on the point discussed, and that what was said thereon in Johnston v. Blanchard, supra, must be disapproved.