the judgment upon the judgment-roll alone-relying upon the alleged insufficiency of the complaint.

Appellants' counse! argues that respondents' election to consider the principal due was not declared until fifty-nine days after such election might have been declared; and that by thus waiting they waived their right to elect at all. This contention is based upon the fact that this suit was not brought until fifty-nine days after the election might have been made, and upon the theory that there was no election until it was declared by the institution of the suit. The record before us shows that the time was only about thirty-nine instead of fifty-nine days. But, in the first place, assuming the time to be as stated by counsel, and that there was no election until the suit was brought, still we could not hold that, as a matter of law, fifty-nine days was an unreasonable time within which to make the election. (Hewitt v. Dean, 91 Cai 5.) In the second place, it is averred in the complaint "that on the failure of the defendants to pay the installment of interest, which, by the terms of said promissory note and the said coupons, became and was due on the twenty-first day of October, 1892, the plaintiffs elected to declare, and did declare, the said principal sum and the interest thereon due and payable." This, as against a demurrer, was a sufficient averment of election at the time the interest became due.

There is an averment in the complaint that the principal sum, together with interest "to be compounded semiannually from October October 21, 1891, is now due and payable." This averment was evidently made upon the motion entertained by respondents; or their counsel, that after having elected to consider the principal due, they could, nevertheless, according to the terms of the note, recover compound interest. But assuming this notion to be wrong, still the averment did not make the complaint vulnerable to the assault of either the general or the special demurrer; and, as a fact, judgment was not rendered for compound interest.

To reverse the judgment in this case for any of the reasons urged by appellants would be to establish a precedent that would tend to make mortgage securities exceedingly insecure.

The judgment is affirmed.

DE HAVEN, J., and FITZGERALD, J., concurred.

[No. 19279. Department One.-February 9, 1894.]

A. P. BROWN, APPELLANT, v. THEO. KLING, RE

SPONDENT.

CONTRACTS-RESTRAINT OF TRADE-SALE OF GOODWILL-Upon the sale of the goodwill of a retail butcher business, a contract not to engage in such business within a radius of five miles from the city where it was carried on, within a period of three years, must be construed as prohibiting such business for the protection of the purchaser in the enjoyment of the business purchased within the space and time limited, and is a valid contract for his protection while so doing. ID.-VALIDITY OF CONTRACTS-LEGALITY.-The contracts declared void as in restraint of trade by section 1673 of the Civil Code are not declared unlawful; and where the contract made is not against public policy, and would have been valid at common law, it is not illegal.

-CONSTRUCTION OF CONTRACT STATUTE PART OF CONTRACT-PRESUMPTION. The contracting parties are presumed to have had in view the statute upon the subject, and it must be held to enter into and become a part of their contract upon that subject, if the contract can be so construed ID-LIMITATION AS TO TIME.-Whatever difficulty there may be in limiting as to space a contract in restraint of trade, where there is no restriction, it may be limited as to time, so as to be enforced to the extent to which it is limited by the statute, for the protection of the purchaser while engaged in the business within the limited territory.

ID-DAMAGES INJUNCTION.-Where the contract in restraint of trade is valid, and the complaint states a breach of it, the plaintiff is entitled to an injunction to prevent its violation, even if only nominal damages can be proven.

APPEAL from a judgment of the Superior Court of Orange County.

The facts are stated in the opinion.

Victor Montgomery, for Appellant.

The complaint is for an injunction, and states a cause of action. (Code Civ. Proc., sec. 526.) Injunction is the proper remedy. (Morse Twist etc Co. v. Morse, 103 Mass. 73; 4 Am. Rep. 513; Dean v. Emerson, 102 Mass. 480: Smith's Appeal, 113 Pa. St. 579; Finger v. Hahn, 42 N. J. Eq. 606; Moore etc. Co. v. Towers etc. Co., 87 Ala. 206; 13 Am. St. Rep. 23.) The contract is valid, and is supported by a sufficient consideration. (Hitchcock v. Coker, 6 Ad. & E. 438; Civ. Code, sec. 1605.) The contract is not against public policy, and therefore is not unlawful. (Civ. Code, sec. 1667.) While contracts in general restraint of trade are void, yet where they are based upon a valuable consideration, and are not unreasonable as a protection to the covenantee, and where they are restricted as to time, place, and subject, they are valid, and will be enforced in equity. (Chitty on Contracts, 581; Addison on Contracts, secs. 273, 292; Story on Contracts, sec. 556; 1 Wharton on Contracts, sec. 430 et seq.; 2 Parsons on Contracts, 747; Whitaker v. Howe, 43 Eng. Ch. 383; Cook v. Johnson, 47 Conn. 175; 36 Am. Rep. 64; Palmer v. Stebbins, 3 Pick. 188; 15 Am. Dec. 204; Van Marter v. Babcock, 23 Barb. 633; Kinsman v. Parkhurst, 18 How. 289; Perkins v. Lyman, 9 Mass. 494; Dunlop v. Gregory, 10 N. Y. 241; 61 Am. Dec. 746; Alcock v. Giberton, 5 Duer, 76; Duffy v. Shockey, 11 Ind. 70; 71 Am. Dec. 348; Diamond etc. Co. v. Roeber, 106 N. Y. 473; 60 Am. Rep. 464; Leslie v. Lorillard, 110 N. Y. 519; Oregon Steam Nav. Co. v. Winsor, 20 Wall. 64; Bishop v. Palmer, 146 Mass, 469; 4 Am. St. Rep. 339; California Steam Nav. Co. v. Wright, 6 Cal. 258; 65 Am. Dec. 511; 8 Cal. 585; Lightner v. Menzel, 35 Cal. 452; Schwalm v. Holmes, 49 Cal. 665.) The court erred in sustaining the general demurrer to plaintiff's complaint, as it was a good complaint to recover the five hundred dollars which plaintiff had paid, and for which he had received no value. (California Steam Nav. Co. v. Wright, 8 Cal. 593.)

E. E. Keech, for Respondent.

The contract in question is contrary to law and void. (Civ. Code, secs. 1667, 1673, 1674; Angier v. Webber, 96 Mass. 211; 92 Am. Dec. 748.) The complaint does not state a cause of action for the recovery of the purchase price of the goodwill, as there are no allegations of the breach of the implied warranty, or of any act of the respondent's with reference to the sale of the goodwill sufficient to authorize any relief. (Civ. Code, sec. 1776; Bergamini v. Bastian, 35 La. Ann. 60; 48 Am. Rep. 216; Myers v. Kalamazoo Buggy Co., 54 Mich. 215; 52 Am. Rep. 811; Hoxie v. Chaney, 143 Mass. 592; 58 Am. Rep. 149.) An action cannot be maintained for the recovery of money paid upon an illegal contract. (Webb v. Fulchire, 3 Ired. 485; 40 Am. Dec. 419; Gravier's Curator v. Carraby, 17 La. 118; 36 Am. Dec. 608; Ohio Life Ins. & T. Co. v. Merchants' Ins. & T. Co., 11 Humph. 1; 53 Am. Dec. 742.)

TEMPLE, C.-In this case a demurrer was interposed to the complaint on the ground of insufficient statement of facts. It was sustained, and plaintiff declined to amend. Judgment was thereupon entered, and plaintiff appeals.

The complaint in substance states that theretofore defendant and one Challis carried on a retail butcher business in Santa Ana and the city of Orange, which cities are about three and one-half miles apart. They had shops in these cities and run wagons distributing and selling meat in the vicinity. April 18, 1892, plaintiff purchased their shops, implements, wagons, fixtures, and stock for four thousand six hundred and fifty dollars paid to them, and at the same time bought the goodwill of the business, for which he paid the further consideration of six :undred dollars, and defendant and Challis at the same time, in consideration of such purchase, each for himself, agreed with the plaintiff that he would not at any time thereafter and within the period of three years from said eighteenth day of April,

1892, engage, directly or indirectly, or concern himself in carrying on or conducting a butcher business in said city of Santa Ana or within a radius of five miles from said city. Plaintiff has ever since continued to conduct said business at the towns of Santa Ana and Orange.

On the nineteenth day of September, 1892, defendant set up a retail butcher business in the city of Santa Ana, which he has since continued to conduct at that place, to the damage of plaintiff in the sum of five hundred dollars, for which sum he asks for judgment, and that defendant be enjoined.

The principal point made on the demurrer is, that the agreement sued on is void because in restraint of trade, and not in accordance with section 1674 of the Civil Code, which only authorizes one selling the goodwill of his business to agree to refrain from doing business "so long as the buyer or any person deriving title to the goodwill from him carries on a like business therein."

Here the purchaser is, as a matter of fact, still carrying on the business purchased, but it is not so limited in the contract. In form defendant agreed not to carry on the business for three years, non constat that plaintiff or his assignee may do business there for three years, therefore defendant bound himself for a period which may extend beyond the period for which he was authorized to bind himself to refrain; therefore the contract is wholly illegal and void.

Section 1673 of the Civil Code reads as follows:

"Every contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, otherwise than is provided by the next two sections is to that extent void."

Section 1674 is as follows:

"One who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business within a specified county, city, or a part thereof, so long as the buyer, or any person deriving title to the goodwill from him, carries on a like business therein."

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