Dowd v. Bryce

Citation95 Cal.App.2d 644,213 P.2d 500
CourtCalifornia Court of Appeals
Decision Date19 January 1950
Parties, 14 A.L.R.2d 1329 DOWD v. BRYCE et al. Civ. 3979.

Whelan & Whelan, San Diego, for appellant.

Treadwell & Griffin, San Diego, for respondents.

GRIFFIN, Acting Presiding Justice.

This is an action for declaratory relief and to make a declaration of the rights and duties of the parties to a certain "Agreement for Sale of Business and Real Estate." The three Dowd brothers, who were engaged in the business of operating a grocery store, fruit and vegetable market and liquor store, on December 5, 1944, sold to defendants, all their right, title and interest in those "businesses, the Good Will therein *** as going concerns," and the real property, stock in trade, accounts, benefits and advantages which they were entitled to in respect to said trades or businesses. Subsequent to the execution of the above-mentioned agreement the Dowd Brothers sold all of their interest in the property herein involved to plaintiff R.H. Dowd. The plot of land was on Midway Drive, in San Diego. Part of this plot was occupied by the store buildings above mentioned, and a second section of the plot now owned by plaintiff, which adjoins the property sold but was not included in the sale, was entirely unoccupied. For the protection of the defendant purchasers, paragraph IV of the agreement was inserted and is the one in question. It provides: "The sellers agree that they will not, for the period of ten years from the date of this Agreement, directly or indirectly, engage in similar businesses to the ones involved in this Agreement, within a radius of two miles of this property, nor knowingly, to sell any land within these same limits to a purchaser contemplating businesses of the same nature ***."

A further provision was inserted in the contract providing for damages in the sum of $15,000 should this provision be violated by the sellers. Paragraph VI of the agreement provides that the sellers "have now in themselves good right to assign the Good Will, stock in trade, fixtures and effects, *** that they, the Sellers, shall not, either by themselves or with any other person or persons, do or cause to be done, any wilful act or thing to the prejudice of the said trades or businesses set forth above, as heretofore carried on and conducted by the Sellers ***." The whole contract consists of five typewritten pages, which was prepared by the buyers.

The particular question presented to the trial court was whether the obligation of the seller under the contract would be violated by plaintiff making a present lease of the parcel of real property now owned by plaintiff within the two-mile radius to a lessee who admittedly intends to operate thereon an off-sale liquor store. It was stipulated at the trial and the court found that the lease which plaintiff desired to give was and is a bona fide lease to a third person. By its decree it determined that if the plaintiff knowingly gives such a lease, within the period of ten years from the date of the agreement, of the plot of real property in question it would, on the part of the plaintiff, be indirectly engaging in the business of a licensed off-sale liquor store and thereby would be in violation of the obligations of the seller in said agreement not to engage indirectly in such a similar business.

Plaintiff attacks this portion of the decree and claims that this case is not one of fraudulent evasion such as the cases of Akers v. Rappe, 30 Cal.App. 290, 158 P. 129; Barrager v. Walls, 62 Cal.App. 472, 216 P. 995; and Merager v. Turnbull, 2 Wash.2d 711, 99 P.2d 434, 127 A.L.R. 1142. He argues that a different rule applies where the vendor acts in good faith, and cites such cases as Meyers v. Merillon, 118 Cal. 352, 357, 50 P. 662;Carr v. King, 24 Cal.App. 713, 142 P. 131; Test Oil Co. v. La Tourette, 19 Okl. 214, 91 P. 1025; Ericson v. Jayette, 149 Fla. 82, 5 So.2d 453;California Linoleum & Shades Supplies, Inc., v. Schultz, 105 Cal.App. 471, 287 P. 980; McKeighan Wachter Co. v. Swanson, 138 Wash. 682, 245 P. 10;Postal Telegraph Cable Co. v. Western Union Telegraph Co., 155 Ill. 335;40 N.E. 587; Sylvester v. Hotel Pasco et al., 153 Wash. 175, 279 P. 566; Brigg v. Thornton, 1 Chancery 386; Hebert v. Dupaty, 42 La.Ann. 343, 7 So. 580; Diller v. Schindler, 88 Cal.App....

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9 cases
  • Bicycle Transit Authority, Inc. v. Bell, 134A85
    • United States
    • North Carolina Supreme Court
    • August 13, 1985
    ...A.L.R.3d 778, § 3[b]. See, e.g., Diagnostic Laboratory v. PBL Consultants, 136 Ariz. 415, 666 P.2d 515 (Ct.App.1983); Dowd v. Bryce, 95 Cal.App.2d 644, 213 P.2d 500 (1950); Langenback v. Mays, 207 Ga. 156, 60 S.E.2d 240 (1950); The Vendo Co. v. Stoner, 105 Ill.App.2d 261, 245 N.E.2d 263 (19......
  • Bicycle Transit Authority, Inc. v. Bell
    • United States
    • North Carolina Court of Appeals
    • February 5, 1985
    ...in the case sub judice. Instead, it urges acceptance of the reasoning of the California Court of Appeals found in Dowd v. Bryce, 95 Cal.App.2d 644, 213 P.2d 500 (1950). In Dowd the court found that the defendant's leasing of land to one of plaintiff's competitors was a violation of an agree......
  • Midlands Transp. Co. v. Apple Lines, Inc.
    • United States
    • Nebraska Supreme Court
    • May 12, 1972
    ...constitute a breach of a general covenant not to compete. Apple premises its argument mainly upon the case of Dowd v. Bryce, 95 Cal.App.2d 644, 213 P.2d 500, 14 A.L.R.2d 1329, and J. D. Nichols Stores, Inc. v. Lipschutz, 120 Ohio App. 286, 201 N.E.2d We feel that the better rule, both on re......
  • Riverview Floral, Ltd. v. Watkins, 8550-3-III
    • United States
    • Washington Court of Appeals
    • June 2, 1988
    ...another with his business is as damaging to the covenantee as if the covenantor had acted on his own behalf. Dowd v. Bryce, 95 Cal.App.2d 644, 213 P.2d 500, 14 A.L.R.2d 1329 (1950). Dowd holds that a seller who lawfully agrees not to directly or indirectly compete with the buyer indirectly ......
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