Gregory v. Spieker

Citations

• 110 Cal. 150
• 42 P. 576
• 1895 Cal. LEXIS 1031

Syllabus

<p>Sale—Goodwill—Restraint of Trade—Fraud—Statute of Limitations.—The seller of a medical compound and of the goodwill of the business, who agrees in the contract of sale not 'to manufacture or sell the compound within a particular county, is guilty of fraud in secretly and clandestinely manufacturing and selling the identical compound by a different name, and through the instrumentality of a third person, and the statute of limitations does not commence to run against the right of the purchaser to enjoin the violation of the contract and to recover damages for the fraudulent breach thereof, until the discovery by him of the facts constituting the fraud.</p> <p>Id.—Covenant for Limited Restraint of Trade.—Under sections 1673 and 1674 of the Civil Code, a provision in a contract of sale of the goodwill of a business, by the terms of which the seller agrees not to engage in the business in a particular county, without limiting his covenant to the time during which the buyer might carry on the business, is not entirely void, but is binding on and enforceable against the seller so long as the buyer or any person deriving title from him carries on a like business in the county.</p> <p>Id.—Construction of Contract—Injury to Goodwill.—A contract of sale whereby the seller transfers “all right, title, and goodwill of the bitters known as Robert’s Kidney and Liver Bitters,” and covenants “ not to manufacture or sell any of said Robert’s Bitters” in a specified county, is a sale of the liquid known when compounded as Robert’s Bitters, and not merely of the name by which it was known; and repre- ■ senting to the buyer’s customers that the same preparation by a different name was superior to Robert’s Bitters, tends to injure the goodwill of the business.</p> <p>Id.—Measure of Damages.—In an action by the buyer to recover damages for such a breach of the contract of sale, where there has been no infringement of a trademark, the measure of damages is the value of the-business los