except as expressly provided in the next section. En. March 21, 1872. Cal.Rep.Cit. 75, 209; 77, 472; 78, 609; 98, 87, 450; 90, 82; 90, 119; 90, 120; 4; 98, 8; 98, 9; 100, 78; 114, 66; 123, 5; 123, 21; 125, 565; 125, 567; 134, 328; 135, 404. § 1671. Exception. The parties to a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage. En. March 21, 1872. Cal.Rep.Cit. 66, 538; 75, 209; 77, 472; 78, 609; 82, 383; 87, 450; 90, 82; 90, 119; 90, 120; 98, 98, 9; 100, 78; 110, 680; 123, 5; 123, 125, 567; 135, 405. § 1672. 4; 98, 8; 9; 125, 566; Restraints upon legal proceedings. (Repealed.) En. March 21, 1872. § 1673. Rep. 1873-4, 242. Contract in restraint of trade, void. Every contract by which any one 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. En. March 21, 1872. Cal.Rep.Cit. 96, 513; 101, 298; 102, 510; 110, 153; 110, 679; 115, 604; 118, 357; 124, 431; 124, 433; 124, 434; 126, 180. § 1674. Exception in favor of sale of good will. One who sells the good will 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 good will from him, carries on a like business therein. En. March 21, 1872. Cal.Rep.Cit. 101, 298; 102, 510; 106, 336; 110, 153; 110, 679; 118, 357; 124, 431; 124, 433; 126, 180; 127, 181. Good will of a business defined: Sec. 992, ante. Good will of a business is property: Sec. 993, ante. Sale of good will, implied warranty not to draw away customers: Sec. 1776, post. Partner cannot dispose of good will: See post, sec. 2430, subd. 2. § 1675. Exception in favor of partnership arrangements. Partners may, upon or in anticipation of a dissolution of the partnership, agree that none of them will carry on a similar business within the same city or town where the partnership business has been transacted, or within a specified part thereof. En. March 21, 1872. Cal. Rep.Cit. 102, 510; 118, 357. § 1676. Contract in restraint of marriage, void. Every contract in restraint of the marriage of any person, other than a minor, is void. En. March 21, 1872. Conditions in restraint of marriage: See ante, sec. 710. TITLE V. EXTINCTION OF CONTRACTS. Chapter I. Contracts, How Extinguished, § 1682. Rescission, §§ 1688-1691. II. III. Alteration and Cancellation, §§ 1697-1701. CHAPTER I. CONTRACTS, HOW EXTINGUISHED. § 1682. Contract, how extinguished. § 1682. Contract, how extinguished. A contract may be extinguished in like manner with any other obligation, and also in the manner prescribed by this title. En. March 21, 1872. Cal.Rep.Cit. 110, 263. CHAPTER II. RESCISSION. Rescission extinguishes contract. 1689. When party may rescind. § 1688. § 1690. § 1691. § 1688. When stipulations against right to rescind do not defeat it. Rescission extinguishes contract. A contract is extinguished by its rescission. Cal.Rep. Cit. 66, 639; 93, 595. En. March 21, 1872. § 1689. When party may rescind. A party to a con tract may rescind the same in the following cases only: 1. If the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party; 2. If, through the fault of the party as to whom he rescinds the consideration for his obligation fails, in whole or in part; 3. If such consideration becomes entirely void from any cause; 4. If such consideration, before it is rendered to him, fails in a material respect, from any cause; or, 5. By consent of all the other parties. 1872. En. March 21, Subd. 3 Cal.Rep.Cit. 66, 639; 78, 134; 114, 167; 137, 290. 85, 31; 92, 37; 94, 366; Subd. 2-129, 372; 131, 546; 133, 443; 136, 635. 133, 443. Subd. 493, 594; 131, 546; 133, 444. Subd. 563, 577. See post, secs. 3406 et seq., on rescission. Rescinding sale of personalty for nonpayment of price: See post, sec. 1749. § 1690. When stipulations against right to rescind do not defeat it. A stipulation that errors of description shall not avoid a contract, or shall be the subject of compensation, or both, does not take away the right of rescission for fraud, nor for mistake, where such mistake is in a matter essential to the inducement of the contract, and is not capable of exact and entire compensation. En. March 21, 1872. $1691. Rescission, how effected. Rescission, when not effected by consent, can be accomplished only by the use, on the part of the party rescinding, of reasonable diligence to comply with the following rules: 1. He must rescind promptly, upon discovering the facts which entitle him to rescind, if he is free from duress, menace, undue influence, or disability, and is aware of his right to rescind; and, 2. He must restore to the other party everything of value which he has received from him under the contract; or must offer to restore the same, upon condition that such party shall do likewise, unless the latter is unable or positively refuses to do so. En. March 21, 1872. Cal.Rep.Cit. 78, 398; 85, 531; 109, 426; 110, 379; 119, 264 124, 544; 129, 85; 132, 280; 54, 190; 70, 254; 78, 396; 99, 357. Subd. 271, 229; 92, 37; 96, 282; 98, 499; 103, 292; 119, 648; 123, 16; 124, 268; 132, 521; 133, 444. Subd. 1 99, 227; 99, 357; 123, 642; 130, 433. Rescission of contracts: See secs. 3406-3408, post. CHAPTER III. ALTERATION AND CANCELLATION. Alteration of verbal contract. § 1697. § 1698. Written contracts, how modified. § 1699. § 1700. 1701. Extinction by cancellation, etc. Extinction by unauthorized alteration. § 1697. Alteration of verbal contract. A contract not in writing may be altered in any respect by consent of the parties, in writing, without a new consideration, and is extinguished thereby to the extent of the new alteration. En. March 21, 1872. Am'd. 1873-4, 242. Cal.Rep.Cit. 110, 263; 129, 305; 134, 29. Alterations in written instrument to be accounted for by the party producing it in evidence: Code Civ. Proc., sec. 1982. § 1698. Written contracts, how modified. A contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise. En. March 21, 1872. Åm’d. 1873-4, 243. Cal.Rep.Cit. 66, 115; 68, 28; 77, 388; 82, 546; 95, 634; 103, 167; 104, 170; 112, 52; 112, 635; 112, 636; 117, 211; 120, 659; 121, 175; 123, 686; 126, 598; 127, 657; 127, 658; 129, 305; 132, 136. Parol evidence to alter writings: See Code Civ. Proc., sec. 1856; and see ante, sec. 1639. § 1699. Extinction by cancellation, etc. The destruction or cancellation of a written contract, or of the signature of the parties liable thereon, with intent to extinguish the obligation thereof, extinguishes it as to all the parties consenting to the act. En. March 21, 1872. Cal.Rep.Cit. 87, 584. Extinction by unauthorized alteration. The in § 1700. tentional destruction, cancellation, or material alteration of a written contract, by a party entitled to any benefit un der it, or with his consent, extinguishes all the executory obligations of the contract in his favor, against parties who do not consent to the act. En. March 21, 1872. § 1701. Alteration of duplicate not to prejudice. Where a contract is executed in duplicate, an alteration or destruction of one copy, while the other exists, is not within the provisions of the last section. En. March 21, 1872. |