terest in said firm and for the execution of said promissory note as a portion of the purchase price thereof; that in violation of said agreement the said plaintiff did engage in the same kind of business within said city of Oakland in competition with the said defendant, which acts on his part were fraudulent, and worked a failure of consideration for the note sued upon in this action. The defendant also presents the same facts in a cross-complaint, wherein he prays for an injunction preventing the plaintiff from continuing in business in competition with the cross-complainant, and for a decree requiring said plaintiff to deliver up said note for cancellation. The defendant has also a so-called cross-complaint for the recovery from plaintiff of the sum of $603.98 upon an assigned claim.

Upon the trial of the cause, evidence was presented before the court showing that for some time prior to the thirteenth day of January, 1913, the plaintiff and the defendant had been copartners conducting a glass and paint business in the city of Oakland under the firm name of Downey-Cavasso Glass and Paint Company; but that on or about the lastnamed date a corporation had been formed by them with the same name and to which corporation they proceeded to transfer their and each of their interest in said business and in all of the properties thereof, each receiving therefor 380 shares of the capital stock of said corporation; that said corporation took over said business, and from time to time during the next year and a half or more held occasional directors' meetings in respect to the affairs of the business; that in the month of October, 1914, the plaintiff and the defendant entered into a written agreement by the terms of which it was recited that the parties thereto were stockholders in the aforesaid corporation, and that defendant was desirous of buying and the plaintiff of selling all of the latter's interest in the business thereof. It was therefore agreed that the defendant was to pay the sum of six thousand dollars for all of the interest of the plaintiff in the said corporation and business, "the said interest being represented by 380 shares of the capital stock of said corporation," which the plaintiff agreed for said consideration to transfer to the defendant. The note in question was a part of said consideration. The closing clause in said agreement reads as follows: "It is further agreed by and between the parties hereto that the said party

of the second part [plaintiff herein] will not engage in any business in competition with the Downey-Cavasso Glass and Paint Company for a period of five years from the date hereof." It further appeared upon the trial that a short time after the execution of said agreement the plaintiff did engage in business in the city of Oakland and in direct competition with said Downey-Cavasso Glass and Paint Company. The trial court decided upon the whole evidence presented that the copartnership which had previously existed between the parties had been merged in the corporation formed in the month of January, 1913, and that the relation of copartners in respect to the business then taken over by such corporation did not continue thereafter, and that the transaction between the parties in October, 1914, was one in which the defendant purchased the stock of the plaintiff in said corporation, giving among other things the note in question as a part of the consideration therefor. We are satisfied from a reading of the record that the evidence fully justifies the findings of the court in this regard. The court further found that the plaintiff did embark in business in the city of Oakland in competition with the said corporation, but not in competition with the defendant, who, since the organization of said corporation had not been engaged in such business on his own account. The court also upon sufficient evidence found against the defendant on his cross-complaint, and accordingly rendered judgment in the plaintiff's favor.

[1] We find no error in the court's conclusions with respect to these matters. The evidence, as we have seen, justified the finding of the trial court that the partnership between the parties hereto ceased when the corporation was organized, and also justifies the finding that the transaction between the parties was one for the purchase by the defendant of the plaintiff's interest in said corporation as represented by the 380 shares of stock held by him therein. If these findings be upheld, it follows necessarily that the plaintiff's violation of the clause in said agreement by which he bound himself not to engage in business in competition with the Downey-Cavasso Glass and Paint Company, a corporation, was a matter which could not be made the subject of a cross-complaint by the defendant in this action. This conclusion assumes the validity of the clause in question as an agreement in restraint of trade. It is urged by the respond

ent that this part of the agreement, not being by its terms. limited as to the territory embraced in its operation, is void as contrary to the provisions of sections 1673 and 1674 of the Civil Code, citing Callahan v. Donnolly, 45 Cal. 152, [13 Am. Rep. 172], as authority for such contention. We do not, however, deem it necessary to dispose of this contention in view of our conclusions upon the other phases of the case. Judgment affirmed.

Waste, P. J., and Kerrigan, J., concurred.

[Civ. No. 2200. First Appellate District, Division One.-April 2, 1919.] RAUER'S LAW & COLLECTION CO. INC., Appellant, v. SHERIDAN PROCTOR CO., Respondent.

[1] JUDGMENTS - TENDER OF PAYMENT - DEPOSIT WITH CLERK-INTEREST SATISFACTION.-A deposit with the clerk of the court of the amount of a judgment and notification to the judgment creditor that the same is there subject to its demand does not constitute a legal tender; and even if it did constitute a legal tender, it would be unavailing to satisfy the judgment where a small amount of interest on the judgment is not included.

[2] TENDER-AMOUNT.-Nothing short of the full amount due the creditor is sufficient to constitute a legal tender, and the debtor must at his peril offer the full amount.

[3] PLEADING-COUNTERCLAIM-RES JUDICATA.-In an action to recover the purchase price of certain personal property sold and delivered, the contention that one of the causes of action set up as a counterclaim had been adjudicated in a former action is not tenable, where such counterclaim, although pleaded in such former action, did not exist at the time of the commencement thereof, but matured some months later, and, therefore, was not adjudicated in that

case.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. E. P. Shortall, Judge. Affirmed.

The facts are stated in the opinion of the court.

Wm. Tomsky for Appellant.

W. H. Barrows for Respondent.

KERRIGAN, J.-This is an appeal by plaintiff from a judgment rendered in its favor for the sum of $49.32. The action was brought to recover $312.50 as the agreed price of certain personal property sold and delivered by the plaintiff's assignor, the Eastern Outfitting Company, to the defendant, Sheridan Proctor Company. In its answer, said defendant admitted the indebtedness pleaded in the complaint, but set up as a counterclaim a judgment in its favor against the plaintiff's assignor of $15, and a demand for $247, the price of storage of certain furniture.

The appeal presents but two questions. [1] As to the first of these it appears that prior to the commencement of this action the plaintiff, in an attempt to satisfy a former judgment of $15 in favor of the defendant, deposited that sum with the clerk of the court, notifying the defendant that the same was there subject to its demand. Such a deposit and notice alone certainly did not constitute a legal tender, and even if it had it would have been unavailing for the reason that a small sum for interest upon the judgment had accrued, which was not included in the amount deposited. [2] Nothing short of the full amount due the creditor is sufficient to constitute a valid tender, and the debtor must at his peril offer the full amount. (38 Cyc. 137.)

[3] Respecting the other point, plaintiff asserts that the claim for storage constituting defendant's second cause of counterclaim had been adjudicated in a former action. It is true that this matter was pleaded by the defendant by way of a counterclaim in a former action between it and the plaintiff's assignor; but it also appears from the record that such counterclaim did not exist at the time that action was commenced, but that it matured some months later. It is apparent that it was not pressed in the first action for the simple reason that it was not an existing demand at the time the action was commenced. (Code Civ. Proc., sec. 438, subd. 2; Wood v. Brush, 72 Cal. 224, [13 Pac. 627]; McGuire v. Edsall, 14 Mont. 359, [36 Pac. 453]), and therefore was not adjudicated in that case. Moreover, no evidence was introduced by the plaintiff in the present action that the subject of the

defendant's counterclaim was res adjudicata, the only reference to it occurring in the cross-examination of a witness. In order to debar defendant's right to recover in this action on its counterclaim, it was necessary for the plaintiff to show that the matter had been theretofore adjudicated, which, as we have said, was not done.

The judgment is affirmed.

Waste, P. J., and Richards, J., concurred.

[Civ. No. 1927. Third Appellate District.-April 2, 1919.] THE TRUCKEE RIVER GENERAL ELECTRIC COMPANY (a Corporation), Appellant, v. JOHN ANDERSON et al., Defendants; DUANE L. BLISS, Jr., et al., Respondents.

[1] ADVERSE POSSESSION-ESSENTIALS-CONSTRUCTION OF CODE.-For the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument, it is not necessary, under section 325 of the Code of Civil Procedure, that the land shall have been "protected by a substantial inclosure" or "usually culti vated or improved" for any specific period of time, but only that it shall have been occupied and claimed and the taxes paid for the period of five years continuously.

[2] ID.-RECOVERY OF POSSESSION OF REAL PROPERTY-STATUTE OF LIMITATIONS. An action for the recovery of the possession of real property is barred by section 318 of the Code of Civil Procedure where neither the plaintiff nor its predecessor "was seised or possessed of the property in question, within five years before the commencement of the action."

APPEAL from a judgment of the Superior Court of Placer County. William M. Finch, Judge. Affirmed.

The facts are stated in the opinion of the court.

John W. Preston and Ed. F. Jared for Appellant.

Raglan Tuttle, Tuttle & Tuttle, W. J. Prewett and Prewett & Chamberlain for Respondents.