APPEAL from a judgment of the Superior Court of Alameda County. T. W. Harris, Judge.

The facts are stated in the opinion of the court.

Edward R. Eliassen, for Appellant.

M. J. Rutherford, for Respondent.

LENNON, P. J.-This is an appeal from a judgment entered in favor of the defendant after an order sustaining a demurrer to the plaintiff's second amended complaint without leave to further amend.

The demurrer was grounded upon the sufficiency of the facts stated to constitute a cause of action and the uncertainty and unintelligibility of the averments of the complaint.

The plaintiff's complaint, when disentangled, discloses that the gist of the plaintiff's grievance arises out of a set of facts which, concretely stated and in the order in which they are rightly related, are these: On and for some time prior to the second day of January, 1913, the plaintiff and defendant were copartners, doing business in the city of Oakland under the firm name of the "Downey-Cavasso Glass & Paint Co." On that date, the plaintiff and defendant caused to be created, out of the assets of, and for the purpose of enhancing the conduct of, the business of the copartnership, a corporation under the former firm name. All of the issued corporate capital stock, save one share reserved for the purpose of qualifying the necessary third member of the corporation, was owned and held in equal shares by the plaintiff and defendant until October 31, 1914, when the defendant sold all of his stock in the corporation to the plaintiff for a consideration which, in part, was the promise and agreement of the defendant, expressed in writing, that he would not, for a period of five years thereafter, engage in business in the city. of Oakland in competition with either the plaintiff or the corporation. This agreement was violated by the defendant to the plaintiff's alleged damage in the sum of one thousand dollars. The prayer of the complaint was for judgment in that amount and for injunctive relief.

The complaint is, beyond doubt, unintelligible in its purported statement of a cause of action, because it cannot be

ascertained therefrom, with any degree of certainty, whether the plaintiff's cause of action proceeded upon the theory that the contract in controversy was made by and between the plaintiff and the defendant as members of an existing corporation which was about to be dissolved, or whether it was made some ten months subsequent to the dissolution of the copartnership and at a time when the defendant was retiring as a stockholder of the corporation which was created for the purpose of absorbing and conducting the business of the copartnership.

Upon this ground alone the demurrer was well taken and rightly sustained, even though the complaint somewhere within its averments hazily hints at a cause of action upon the theory contended for by counsel for the plaintiff, viz.: That the plaintiff and defendant by agreement between themselves, at the time of and subsequent to the creation of the corporation, continued and sustained toward one another the relation of copartners and that, as a consequence, the contract in suit, even though made at the time of or after the corporate absorption of the copartnership assets, is not con. trolled by the statutory inhibition of section 1673 of the Civil Code against contracts in restraint of trade, but falls within the exception thereto provided by section 1675 of the same code, which declares that "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."

Perhaps if it had unequivocally appeared from the allega tions of the complaint that the plaintiff and defendant had, by agreement, express or implied, continued their relations as copartners in conjunction with their relation as stockholders of the corporation, the law would take cognizance of such dual relationship and deal with "the parties in the light of their agreement, independently of their incorporation" (Shorb v. Beaudry, 56 Cal. 446), and if, in fact, such had been the relationship of the parties, to plead it with perspicuity would, it seems to us, have been a very simple matter.

The judgment is affirmed.

Beasly, J., pro tem., and Kerrigan, J., concurred.

[Crim. No. 592. Second Appellate District.-February 19, 1918.]

In the Matter of the Application of LESLIE JOHNSON for a Writ of Habeas Corpus.

JUVENILE COURT LAW - PROBATIONARY COMMITMENT.-The juvenile court law, in case of an ordinary criminal information, permits the superior court to make probationary commitment of a minor, leaving in the court the right to change or modify its judgment at any time during the probationary term.

ID.-PAROLES AND DISCHARGES FROM PRESTON SCHOOL OF INDUSTRYRIGHT OF TRUSTEES.-The juvenile court law does not take away from the board of trustees of the Preston School of Industry the right to allow paroles or make discharges of inmates. ID. COMMITMENT TO PRESTON SCHOOL OF INDUSTRY-CONDITIONAL ORDER-RELEASE UPON ORDER OF COURT-HONORABLE DISCHARGE BY SCHOOL TRUSTEES-EFFECT OF.-Under sections 9 and 17 of the juvenile court law, an inmate of the Preston School of Industry honorably discharged by the board of trustees is released from all penalties and disabilities resulting from the offense for which he was committed, and is entitled to his discharge on habeas corpus, where rearrested upon an order of court made at the time of his commitment which provided that he was not to be released or discharged except upon an order of court, but should be returned to the court upon attaining his majority.

APPLICATION for a Writ of Habeas Corpus originally made to the District Court of Appeal for the Second Appellate District, to secure the release of a discharged minor from the Preston School of Industry.

The facts are stated in the opinion of the court.

Arthur E. T. Chapman, for Petitioner.

Thomas Lee Woolwine, District Attorney, and Wm. J. Clark, Deputy District Attorney, for Respondent.

JAMES, J.-Habeas corpus. Petitioner seeks to secure his discharge from the custody of the sheriff of Los Angeles County. In July, 1916, petitioner was convicted before a jury of the crime of grand larceny. The court determined. his age at that time to be nineteen years, and that he was a fit subject for commitment to the Preston School of Industry.

The following judgment was then entered: "It is ordered that the said Leslie Johnson be and he is hereby committed to the said Preston School of Industry, at Ione, California, until he reaches the age of twenty-one years, unless sooner discharged by law, provided, however, the said minor is not to be released or discharged except by order of this court, first had and obtained, but to be returned to court upon attaining majority." On January 6, 1918, the authorities at the school of industry to which petitioner was committed gave him an honorable discharge, certificate of which has been here exhibited. Thereafter, upon petitioner's return to Los Angeles County, he was rearrested, the court assuming jurisdiction on the ground that such jurisdiction had been retained under the commitment theretofore issued to the Preston school. Thereafter the court made its order determining that petitioner had violated conditions of his probation, and thereupon sentence was imposed that petitioner be imprisoned in the state prison for not less than one nor more than ten years. It is first contended that, as petitioner was regularly tried and convicted under an ordinary criminal information, when the court determined that he should be committed to the school of industry it exhausted its right of control of the minor. Under the express terms of the act (Stats. 1889, p. 100; as amended, Stats. 1893, p. 39; as amended, Stats. 1909, p. 964; as amended, Stats. 1915, p. 849), this conclusion would seem to follow. However, counsel for respondent sheriff contends that the juvenile court law permits the superior court in such a case to make probationary commitment, leaving in the court the right to change or modify its judgment at any time during the probationary term. Such undoubtedly is the condition of the law respecting ordinary proceedings under the juvenile act. Acting under the authority of that law, the superior court in proper cases has the right to repose the custody of a minor during the probationary period in the parent or guardian or probation officer, or to commit such minor to a state school. (Stats. 1915, p. 1225.) Section 25 of the act provides that its provisions shall supersede the provisions of the act relating to the Preston School of Industry as to the "mode of commitments" to that institution. However, there is another provision important to be considered, and that is found in section 9 of the same law. It is as follows: "Any order made by the court in case of any person subject to the jurisdiction

of the court under the provisions of any of subdivisions one to thirteen inclusive of section one of this act may at any time be changed, modified or set aside as to the judge may seem meet and proper; provided, however, that nothing in this act contained shall be deemed to interfere with the system of parole and discharge that is now or may hereafter be provided by law, or by rule of the board of trustees of the Whittier State School, the Preston School of Industry or the California School for Girls, or any similar state institution or institutions, respectively, for the parole and discharge of wards of the juvenile court committed to the said schools or to any similar state institutions hereafter created, or with the management of the said schools, save that the court committing a ward to any of said schools may thereafter change, modify or set aside said order of commitment upon ten days. notice of the hearing of the application therefor being served by United States mail upon the superintendent of the said school to which said person has previously been committed, and providing that the court shall not then change, modify or set aside said order without due consideration of the effect thereof upon the discipline and parole system of said school or institution." An express condition of this subdivision is that nothing in the act shall be deemed to interfere with. the system of parole and discharge that may be provided by law or rule of the board of trustees of the school of industry. There is the proviso that the court may change and modify its order of commitment upon ten days' notice to be given. to the superintendent of the school. The latter condition of course presupposes that at the time such modification is sought to be made the person affected has not been theretofore discharged from the institution. Conceding, as we must, then, that the juvenile court law does not take away from the board of trustees of the school of industry the right to allow paroles or make discharges of inmates, we have to examine the law creating the school and providing for the authority given respecting paroles and discharges therefrom. Section 17 of the act providing for the establishment of the Preston School of Industry (herein before referred to) pro-, vides as follows: "It shall be lawful for the board, whenever it may deem any inmate of said institution to have been so far reformed as to justify his discharge, to give him an honorable dismissal, and to cause an entry of the reasons for

86 Cal. App.-21