The judgment of the superior court in this case was reversed by a decision in Department upon the ground that the complaint failed to state a cause of action, because it contained no allegation of nonpayment. All other points involved in the appeal were ruled in favor of the respondent. After rehearing, we readopt the opinion of the Department, except as to the point upon which the judgment was reversed.
We think the complaint was sufficient without an allegation of nonpayment. The contract of defendant was not simply for the payment of money. It was, on the contrary, a contract not to set up a rival business, and the agreement to pay two thousand dollars in case of the breach of the principal covenant was merely incidental. When the plaintiff alleged the establishment of a rival business, he showed a breach of the contract and a cause of action, and was not required to allege nonpayment.(Beasley v. Gillespie, 4 Bibb. 314; Hughes v. Houlton, 5 Blackf. 180.)
The decisions of this court cited in the commissioner's opinion are not in point, for the reason that they all relate to contracts for the payment of money only — contracts, that is to say, which could be broken in no other way than by nonpayment.
The judgment of the superior court is affirmed.
Temple, J., Henshaw, J., Van Dyke, J., and McFarland, J., concurred.
The following is the opinion above referred to, rendered in Department One on the 13th of February, 1899: