Shafer

Action for damages. Findings and judgment in favor of plaintiff for $500, from which defendant appeals. The complaint, the allegations of which were by the trial court found to be true, alleges the sale by defendant and purchase by plaintiff in 1886 of a stock of second-hand furniture, together with the goodwill, under a written agreement that defendant should not engage in the occupation of keeping a second-hand store in the town of San Bernardino so long as plaintiff should continue in such business, upon default of which defendant should pay to plaintiff the sum of $500. It is further alleged that plaintiff is, and ever since such sale has been, engaged in such business. That defendant, in 1903, entered into and engaged in the second-hand business in said town, to plaintiff’s damage in the sum of $500.

The principal contention of appellant is that the goodwill was not sold under the terms of the written contract, which only specified that the sale was of “all my right, title and interest in and to the goods, wares and merchandise in my storeroom,” etc., excepting certain articles specified, coupled with an agreement that the seller should not enter into or engage in the…