as it saw fit, but when as a condition of purchase it bound its vendor not to sell to others under a penalty, it transcended a rule the adoption of which has been dictated by the experience and wisdom of ages as essential to the best interests of the community, and as necessary to the protection alike of individuals and legitimate trade.

"With the results naturally flowing from the laws of demand and supply, the courts have nothing to do, but when agreements are resorted to for the purpose of taking trade out of the realm of competition, and thereby enhancing or depressing prices of commodities, the courts cannot be successfully invoked, and their execution will be left to the volition of the parties thereto."

The desire and the intention of the parties to secure to defendant, so far as possible, a monopoly of the lobster business in the selected territory, and the consequent covenant in restraint of the trade, entered so fundamentally into the inception and consideration for the transaction as to render the terms of the contract nonseverable, and it is wholly void. (Santa Clara Valley Mill & Lumber Co. v. Hayes, supra, p. 393; Arnot v. Pittston & Elmira Coal Co., supra; Prost v. More, 40 Cal. 347.) Whether or not the defendant obtained what he sought, an entire monopoly of the trade, is immaterial. [6] The statute (Civ. Code, sec. 1673) makes no exception in favor of contracts only in partial restraint of trade. (Chamberlain v. Augustine, 172 Cal. 285-288, [156 Pac. 479].) That the covenants of the contract are illegal as being in restraint of trade, and against the express mandate of the law of the United States and of this state, we entertain no doubt. (Getz Bros. & Co. v. Federal Salt Co., 147 Cal. 115-118, [109 Am. St. Rep. 114, 81 Pac. 416].)

[7] The appellant offered to show by parol testimony that, under the terms of the contract, it was meant by the parties to the agreement and was intended that he should have the exclusive right to sell lobsters within the restricted territory; that at the time the contract was made Zander represented to him that the M. Kondo Fisheries Company and M. Kondo would control the entire supply of lobsters which could be shipped into California from Mexican waters, thus assuring appellant the exclusive control and a monopoly of the lobster trade on the Pacific Coast. The court excluded the evidence. Appellant now contends that it was

admissible upon the ground, first, under the general rules that ambiguities in written contracts may be explained by parol, and, second, to show that the contract was illegal as being one in restraint of trade. As to the first of these grounds, the only one assigned in the trial court, we think the evidence was properly excluded. On this point the district court of appeal correctly held that the "only exclusive right which the defendant obtained under the terms of this contract was one which was exclusive only so far as it bound the other party to the contract, and possibly also the fisheries company, not to ship or sell lobsters in said territory in competition with the defendant; and, as we have seen, the evidence showed that the contract was kept by the plaintiff's assignor in this regard. The contention of the appellant that the seller of the product bound himself and the com pany from which he purchased said lobsters to see to it that no other persons whatever shipped or sold lobsters within the specified territory in competition with the appellant would be a strained construction, to which the language of said contract taken in its ordinary signification is not susceptible; and the trial court, therefore, committed no error in refusing to the defendant the right to introduce oral evidence which would have the effect of varying and contradicting the terms of the written agreement. On the second ground suggested, however, for the first time on this appeal, the evidence was admissible in support of appellant's offer to show that the contract was one in restraint of trade. (Buffendeau v. Brooks, 28 Cal. 642; Benicia Agricultural Works v. Estes, 3 Cal. Unrep. 855, [32 Pac. 938, 940]; Daw v. Niles, 104 Cal. 106-118, [37 Pac. 876]; McMullen v. Hoffman, 174 U. S. 639, [43 L. Ed. 1117, 19 Sup. Ct. Rep. 839, see, also, Rose's U. S. Notes].) The rule is thus stated in 3 Williston on Contracts, section 1753, page 3060: "Parol evidence is always competent to show that a written contract, though lawful on its face, was illegal or part of an illegal transaction; and illegality if serious need not be pleaded or urged to enable the court to act upon it." The evidence was not offered for that purpose and the lower court did not have the point in mind when ruling on its admissibility. Consequently we would not be justified in reversing the judgment on this ground alone, for, as already pointed out, sufficient evidence was presented to show the

nature of the contract. The additional testimony offered would merely serve to emphasize the point.

As

The appellant contends that there is no testimony as to the market value of the lobsters at the time of delivery at San Diego under the contract, and that therefore the evidence is insufficient to support the judgment fixing the amount of damages suffered by the plaintiff. The respondent's first reply to the contention is that the denials in that respect, contained in the answer, are framed in the objectionable form of the negative pregnant, which raised no issue. suming that to be so, the cause proceeded to trial upon the theory that the issue had been properly tendered, and respondent's objection should not now be considered. The contract called for delivery f. o. b. San Diego. Considerable evidence was presented by the plaintiff as to the cost of lobsters to him during the time the contract was being performed by the appellant, and as to what would have been their cost during the entire term of the agreement had the appellant on his part continued to perform. No objection was offered to this testimony. Under section 3311 of the Civil Code the measure of damages suffered by the respondent was "the excess, if any, of the amount due from the buyer, under the contract, over the value to the seller," and it has been decided by this court that under similar circumstances the value to the plaintiff for the purpose of fulfilling his agreement to sell personal property would be, prima facie, the cost thereof to him. (Thompson v. Hamilton Motor Co., 170 Cal. 737-739, [Ann. Cas. 1917A, 677, 151 Pac. 122].)

The judgment is reversed.

Wilbur, J., Lennon, J., Sloane, J., Shurtleff, J., and Shaw, C. J., concurred.

Rehearing denied.

All the Justices concurred.

[L. A. No. 6246. In Bank.-January 5, 1922.]

FLORENCE M. BUDD, Respondent, V. IDA ALYS MORGAN, Appellant.

[1] ALIENATION OF AFFECTIONS-MARRIAGE EVIDENCE.--In an action by a wife for the alienation of the affections of her husband, a prima facie case of the existence of the marriage relationship is sufficiently made out by the testimony of the wife as to the marriage and that they had subsequent thereto deported themselves as husband and wife.

[2] MARRIAGE-EVIDENCE-CONSTRUCTION OF CODE.-The intent of sec tion 57 of the Civil Code, providing that consent to marriage and a solemnization thereof may be proved under the same general rules of evidence as facts proved in other cases, was to enable parties to or persons present at the solemnization of a marriage to testify to the facts within their knowledge that such marriage actually took place, and when to such testimony the additional evidence is educed showing that since the marriage the parties have deported themselves as husband and wife, a prima facie case has been sufficiently shown.

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[3] ALIENATION OF AFFECTIONS CONSPIRACY EVIDENCE DECLARATIONS.-Where in an action by a wife for the alienation of the affections of her husband the defendant claimed that she was the victim of a conspiracy which had been formed for the purpose of entrapping her into a compromising position with plaintiff's husband, it was reversible error to exclude evidence of declarations made before the consummation of the conspiracy by a deputy constable, employed by plaintiff's attorney to serve process on the defendant, relative to other things he did and was to do, where the evidence established prima facie that he in reality was a member of the alleged conspiracy, rather than an employee thereof, although he was not named as a conspirator in the answer.

APPEAL from a judgment of the Superior Court of Los Angeles County. Willis I. Morrison, Judge. Reversed.

The facts are stated in the opinion of the court.

H. C. Millsap and Ward Chapman for Appellant.

Swaffield & Swaffield for Respondent.

SHURTLEFF, J.-This is an action by plaintiff for damages for the alleged alienation by defendant of the affec

tions of one Orris O. Budd, the plaintiff's husband. The amended and supplemental complaint alleged that the plaintiff and said Orris O. Budd were, and ever since the fourth day of March, 1901, had been, husband and wife, and stated in detail the acts and conduct of the defendant alleged to have caused and resulted in such alienation. The defendant in her answer denied, for want of knowledge, information, or belief, that plaintiff was lawfully or otherwise married to said Budd, or that they are or at any of the times mentioned in the complaint were husband and wife, and also denied both the alienation of the husband's affections and the alleged means and acts by and through which it was claimed that the same had been accomplished. The answer further averred that the defendant was the victim of a conspiracy entered into by the plaintiff, her husband, the said Orris O. Budd, and certain other named persons, by and in pursuance of which the said Budd was to make love to defendant and was to entrap her into compromising positions with him in order to lay the foundation for and further this action, and to extort money from the defendant.

The action was tried upon the issues thus framed before the court and a jury, and resulted in a verdict for fifteen thousand dollars damages in favor of plaintiff, for which amount judgment was entered, and from which judgment this appeal is prosecuted.

The appellant does not contend that the evidence upon the issue of alienation was insufficient to support the verdict, but confines her claim for reversal to the following: First, that the marriage between plaintiff and the said Orris 0. Budd was not sufficiently established; second, error in the exclusion of certain evidence; and, third, misconduct by the court in the use of certain language when ruling upon one of defendant's objections.

[1] The first of these contentions was, we think, correctly determined by the district court of appeal in the following language, which we approve and adopt: "The first . . . contention of the appellant is that the evidence which was offered by the plaintiff for the purpose of establishing the marriage between herself and Orris O. Budd was insufficient to establish such marriage, and that the objections of the defendant to the admission of the same should have been sustained. The evidence which was thus offered and objected to