2. Appellant contends that the principle that contracts in restraint of trade are void does not apply to the contract here sued on, because it deals with certain patent rights.

The facts on which this point is based are these: It appears from the contract that three of the contracting parties were the owners of certain letters patent for invention of methods or processes for making dynamite. The other two parties, viz., the plaintiff herein and the Vigorit Powder Company, did not have any such patent. There is a good deal of recitation in the contract about these patents, and mention is made of an "interchange of rights" under them. It is recited that the parties are desirous of being released from all claims for any infringement, "real or alleged," of said patents, and of obtaining license from each other to manufacture under said patents; and "in consideration of the premises, and of certain valuable considerations" (not stated), they enter into the contract. As the plaintiff and the Vigorit company had no patent, it is obvious that the consideration moving from them was their covenant to refrain from competition in the dynamite business, and that they had no patent rights to "interchange."

In some text-books and decisions, it has been stated, generally, that the rule about contracts in restraint of trade being void does not apply to patent rights; but as applied in the adjudicated cases, it means only that a trader may sell a patent right, or a secret in his trade or art, and restrain himself generally from the use of it, or from other acts which would lessen the value of the patent sold. And, of course, as a patent is a sort of monopoly, the owner may manufacture under it, or not, as he pleases, and may make either a partial or entire assignment of it, and may protect his assignee, not only by an agreement not to use the patent (which would be unnecessary, because such use would be an infringement), but by a covenant not to interfere in any way with the profits to be derived from the assigned patent. The cases cited by appellant (Morse Twist Drill etc. Co. v. Morse, 103 Mass. 73; 4 Am. Rep. 513; Taylor v. Blanchard, 13 Allen, 370; 90 Am. Dec. 203; Stearns v. Barrett, 1 Pick. 443; 11 Am. Dec. 223; Mackinnon Pen Co. v. Fountain Ink Co., 16 Jones & S. 447; Jarvis v. Peck, 10 Paige, 118) go no farther than this. Indeed, most of those cases go upon the old rule, that there may be a contract in partial restraint of trade, independent of the right of the patentee, and upon the principle applied in said

section 1673 of our code to the sale of the good-will of a business. But no case has been cited in which it has been held that several persons or companies can legally enter into a business combination to control the manufacture, or sale, or price of a staple of commerce merely because some of the contracting parties have letters patent for certain grades of that staple. Indeed, the contract before us is not confined to dynamite produced under the processes of the named patents. It speaks, in places, of "dynamite" generally, and provides that the contract may be terminated if "other party or parties shall begin the business of manufacturing and selling dynamite within the territory named, in competition to the parties hereto," — thus recognizing the probability of other persons, not having the patents named, entering into the business of making and selling the very commodity that is the subject of the contract.

3. Appellant contends that even though the contract be void, still this action can be maintained.

The contract provides that each of the parties shall make periodical verified reports to the standing committee of the amount of dynamite sold by it, and that each party shall have the right to make quarterly examinations of the books of account, papers, and vouchers of each of the other parties; and the gist of the complaint is, that the defendants have made false reports of the amount of dynamite sold by them, and refuse to allow an examination of the books, etc. The object of the action is to compel defendants to allow such examination of their books and papers, and for a judgment against them for such amount of money as may be found to be due from them to plaintiff according to the provisions of the contract.

The rule upon the subject is expressed in the maxim, Ex turpi causa non oritur actio. No cause of action can arise out of an illegal contract; and a court will leave the parties to such a contract exactly where it finds them. Courts have held, in a few instances, against the current of authority, that where money or other property has accumulated under an illegal contract, equity will not refuse to dispose of such property as between the parties. Appellant has cited some of such decisions. But in case at bar, the provisions sought to be enforced by the action are the very means established by the parties to the contract for the purpose of making sure their illegal agreements. They are inseparably interwoven with

the whole texture of the contract, and partake of its general character. To grant the prayer of the complaint would be to put into operation the only machinery by which one of the parties to the contract could enforce it against the others. They must be left where they are.

The judgment is affirmed.

CONTRACTS IN Restraint of TRADE — WHAT ARE. — A contract entered into between independent dealers and manufacturers in the same line of business, which imposes unreasonable restrictions upon trade and the freedom of the parties thereto, the tendency of which is to prevent competition, is contrary to public policy and void: Texas etc. Oil Co. v. Adoue, 83 Tex. 650; 29 Am. St. Rep. 690, and note. As to what contracts are in restraint of trade, see extended notes to Callahan v. Donnolly, 13 Am. Rep. 173; Angier ▼. Webber, 92 Am. Dec. 751; Pike v. Thomas, 7 Am. Dec. 743. A contract in total restraint of trade in a state, the tendency of which is to prevent competition in an article of commerce and create a monopoly therein, is void: State v. Nebraska Distilling Co., 29 Neb. 700. See also extended notes to Tardy v. Creasy, 59 Am. Rep. 686, and Smalley v. Greene, 35 Am. Rep. 269, in which the subject is further discussed, and in which cases are collected giving instances of contracts in restraint of trade which were held valid.

DOUGLASS v. TODD.

(96 CALIFORNIA, 655.]

JUDGMENTS, MOTION TO VACATE. — COUNTER-AFFIDAVITS will not be received to rebut the allegation of merits contained in affidavits presented by a party moving for relief from a judgment by default.

JUDGMENT, RELIEF AGAINST, FOR MISTAKE OF LAW. - If a defendant fails to make his defense to an action because, after consulting with an attor ney, he is advised by such attorney that his defense is not good in law, and believes and relies upon the advice so given, he may, on motion, be relieved from a judgment subsequently entered against him by default, if the attorney was mistaken, and the defense was good in law, and would have been interposed but for the advice received. A statute authorizing relief to be granted upon motion from a judgment entered against a party through his mistake, inadvertence, or excusable neglect is not restricted to mistakes of fact, but authorizes relief to be granted on account of a mistake of law.

George D. Collins, for the appellant.

Boyd, Fifield, and Hoburg, for the respondent.

HAYNES, C. Appeal from an order vacating a judgment entered against defendant upon default.

The affidavit of defendant stated facts showing a sufficient defense to plaintiff's action, at least as to the first cause of action.

Plaintiff filed a counter-affidavit, which, it is contended, rebuts the facts stated in defendant's affidavit.

It is well settled that a default will not be set aside unless a sufficient affidavit of merits is filed; but proper practice does not permit the facts stated in defendant's affidavit, which constitute his defense to the action, to be rebutted by counteraffidavits. The court will not try the merits of the case upon affidavits, but will hear counter-affidavits as to the excuse for permitting the default: Francis v. Cox, 33 Cal. 323; Gracier v. Weir, 45 Cal. 53.

Defendant's affidavit, after fully stating the facts constituting his defense to the action, alleged, as the reason why he permitted a default to be taken against him, that as soon as he was served with the summons he consulted an attorney, whose name he gives, and explained to him the facts stated in his affidavit, and was advised by said attorney that he had no defense, and believing and relying upon said advice, did not answer the complaint.

Appellant does not deny in his counter-affidavit that respondent received that advice, but denies that he made default for that reason, and alleges that it was because he supposed himself to be "execution-proof." It is not probable that if that was the reason why he permitted a default to be taken, that he would have consulted an attorney in regard to a defense to the action; but having done so, and having been advised that he had no defense, it is quite natural that he should assert to plaintiff that he "could hang his judgment on the wall," that he could n't collect it.

Appellant contends, however, that the erroneous advice of counsel as to the law of the case upon which the defendant relied, and because of which he supposed the default to be taken, is not a sufficient ground for setting it aside.

We are not referred by counsel to any case where this precise question has been decided by this court. Appellant cites cases where it is held that the negligence of the attorney will not avail to set aside a default, and contends that therefore his ignorance will not avail.

Ignorance is often the result of negligence, though it cannot always be attributed to that cause.

Defendant was not guilty of any negligence. Had he relied upon his own judgment as to the law applicable to the fact of his case, it might have been negligence. But he went to a

practicing attorney, and had a right to suppose him to be competent, and was justified in acting upon his advice.

Section 473 of the Code of Civil Procedure is broad enough to justify the action of the court below in relieving a party from a mistake of law on the part of his attorney, when, by his reliance upon it, he is prevented from making any defense. The language of this section does not limit the relief to mistakes of fact.

Section 1576 of the Civil Code is as follows: "Mistake may be either of fact or law." So that it would seem clear that in using the word "mistake," in section 473 of the Code of Civil Procedure, without any qualification, it was intended not to restrict the court in granting relief in furtherance of justice to that kind of mistake which involves only facts. That this was the intention of the code commissioners is plain from their note to section 1576 of the Civil Code. They said: "This chapter undoubtedly modifies the rule heretofore existing in this state as to mistake of law. . . . . The rule that no relief should ever be granted on the ground of mistake of law seems too harsh, and in some cases might work great hardship. There is, however, no doubt but that relief upon this ground must be granted with extreme caution, and only in a limited class of cases.

In Whereatt v. Ellis, 70 Wis. 207, 5 Am. St. Rep. 164, the syllabus, which correctly states the point decided, is as follow: "Where judgment for a considerable sum has been taken upon a default which was caused by the defendant following in good faith the advice of his attorney, and a meritorious defense is alleged, the court, upon application duly made, should grant a trial or hearing upon the merits upon such terms or conditions as to do no injustice to the plaintiff; and a refusal to grant such hearing is an abuse of discretion." See also Morgan v. Bishop, 61 Wis. 410, and Hanson v. Michelson, 19 Wis. 498.

In Baxter v. Chute, the supreme court of Minnesota, in an opinion filed June 13, 1892 (52 N. W. Rep. 379), where a default was suffered because of the ill advice of counsel, reversed the order refusing to set aside the default, and held that "a mistake of law may afford ground for relief as well as a mistake of fact." To the same effect is Brown v. Brown, 37 Minn. 128. In both these states the language of the statute as to the ground of relief is the same as ours.