Franz

Judgment was entered for the plaintiffs upon the verdict of a jury, and the defendant appeals therefrom on the judgment-roll, contending that the complaint does not state a cause of action. *Page 180 The complaint sets out an agreement by which the defendant agreed with the plaintiffs that he would not engage in the wine and liquor business within the radius of ten miles in either direction from 809 East Fourteenth street, in the city of Oakland, for the period of ten years from the date of the agreement — April 19, 1890 — and bound himself to the plaintiffs "in the penal sum of two thousand dollars, as liquidated damages," to be paid by the defendant "should he fail to keep these covenants and agreements." The complaint then alleges that, on January 15, 1895, the defendant resumed the said wine and liquor business within the defined territory, to plaintiffs' damage in the sum of two thousand dollars, and judgment is prayed for that sum. Defendant's obligation was to pay plaintiffs the sum of two thousand dollars in case he should resume the designated business within the defined territory before the expiration of ten years. It does not appear that he has not performed…

The judgment of the superior court in this case was reversed by a decision in Department upon the ground that the complaint failed to state a cause of action, because it contained no allegation of nonpayment. All other points involved in the appeal were ruled in favor of the respondent. After rehearing, we readopt the opinion of the Department, except as to the point upon which the judgment was reversed. We think the complaint was sufficient without an allegation of nonpayment. The contract of defendant was not simply for the payment of money. It was, on the contrary, a contract not to set up a rival business, and the agreement to pay two thousand dollars in case of the breach of the principal covenant was merely incidental. When the plaintiff alleged the establishment of a rival business, he showed a breach of the contract and a cause of action, and was not required to allege nonpayment. (Beasley v. Gillespie, 4 Bibb. 314; Hughes v. Houlton, 5 Blackf. 180 .) The decisions of this court cited in the commissioner's opinion are not in point, for the reason that they all relate to contracts for the payment of money only — contracts, that is to say, which could be broken in no…