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Page Superior Court of Shasta County, Larkin Vanderhursts's Estate, In re (Cal.). ...... 5 y. (Cal.)......

Van Horn v. Chambers (Wash.).... . 1084 Sutton v. Denton

........1193 | Van Horn v. Wetterhold (Kan.)..... 274 Sutton, Midland Savings & Loan Co. v. Van Sickle, State v. (Kan.)..........

1015 (Okl.) ...............................1133 Vaught, Dudacek v. (Idaho)............. 995 Swain'v. Archer (Oki.)... Sweet v. Richvale Land Co. (Cal. App.)...

Wadsworth v. Crump (Okl.).......

60 Swift v. McAlester Trust Co. (Okl.).....1175

Wagner, United Iron Works v. (Wash.).. 460
Wagner, Woody v. (Wash.).

819 Tacoma Mill Co. v. Northern Pac. R. Co. Wakeman v. Greenan (Okl.).. (Wash.) ..::::::

Walker, Missouri, K. & T. R. Co. v. (Okl.) 343 Taft v. Washington (Cal. App.)......

..1073
Walker v. Walker (Okl.)....

512 Tanner v. Cherokee & Pittsburg Coal &

Walker v. West Pub. Co. (Okl.)..... ..1189 Mining Co. (Kan.)....................

269

Wallace, State v. (Or.).... Taylor, Stevens v. (Or.)................

895

Ward v. Pittsburg Silver Peak Gold Min. Teague v. Hall (Cal.).... 851 Co. (Nev.)..........

74 Tegley Hardware Co. v. Continental Ins. Ware, Sțate v. (Or.). ..::::::............

.. 905 Co. (Kan.). .........:

229

Warner, Templeton v. (Wash.)...........1081 Templeton v. Warner (Wash.)...........1081 Washington, Taft v. (Cal. App.).........1073 Terry v. Rivergarden Farms Co. (Cal. App.) 476 Washington Electric R. Co., Oechsli v. Thayer v. Denver & R. G. R. Co. (N. M.). . 691 (Wash.).

:1079 Thomas, American Bankers' Ins. Co. v. Washington Water Power Co. v. Spokane (Okl.) .... .....

44
(W ash.) ..........

329

.. .. Thomas v. Oregon Short Line R. Co. (Utah)

Weakley, Routh v. (Kan.)..

218 Thompson, Chicago, R. I. & P. R. Co. v.

Weathers v. Board of Com'rs of Coal Coun(Okl.) ........::::....::::::::

ty (Okl.)...........:

642 Thompson, Fremont Lodge, No. 11, I. O.

Weaver, Madill State Bank v. (Okl.)..... 478 O. F. v. (Wyo.) .....:

600 Weber v. Head Camp, Pacific Jurisdiction, Thompson, Jones v. (Okl.)....

1139 Woodmen of the World (Colo.).... Thompson v. State (Okl.)......

508 Welch, Insurance Co. of North America Thompson v. Thompson (Okl.).

1146 v. (Okl.)....... Thornburgh, Campbell v. (Okl.).

574

Welch, Insurance Co. of North America v. Tilghman, Meek v. (Okl.)............

1190
(Okl.)

..........
Tilton y. Decker (Cal.)..............
860 Welch v. Petley (Wash.)..

145 Tingey v. Callahan Const. Co. (Cal. App.) 28 Wells v. Hansen (Kan.).........

...1033 Title Guaranty & Surety Co., Marshall Wenks v. Gehring (Cal.).................

Wells Hardware Co. v. (Wash.). ..... Wenks' Estate, In re (Cal.). ...
Title & Trust Co., Nicholas y. (Or.)... 391

Western Lumber & Pole Co., City of GoldTopeka Bridge & Iron Co. v. Board of

en v. (Colo.)....... Com'rs of Labette County (Kan.).... 230

Western Supply Co., St. Louis Cordage Topeka R. Co., Nicholas v. (Kan.).... 1010

Mills v. (Okl.).

646 Towessnute, State y. (Wash.).......... 805

West Pub. Co.,' Walker v. (Okl.).........1189 Town of Hominy v. McFarland (Okl.).... 1128 | Wetterhold, Van Horn v. (Kan.)......... 274 Townsend, Clark v. (Kan.)....

.1009
Wettersten v. Fisher (Or.)....

534 Tranmer, State v. (Nev.).......

80

Wheeler, Molalla Electric Co. v. (Or.)... 686 Triangle Traders v. Bremerton (Wash.). 193

Whitaker, State y. (Nev.)...... Troutner v. State (Ariz.).

1048

White, C. D. Osborne & Co. v. (Okl.)... 653 Trumbull, Ritchie v. (Wash.).

816
White, Hamberger v. (Okl.)............

576 Trunk Sewer, Local Imp. Dist. No. 62, In

White v. Powers (Wash.)...

820 re (Wash.)......

193
Whitehouse, H. T. & C. Co. v. (Utah)

950 Tryon, Page v. (Okl.).................. 526 Whitney, Landers v. (Cal.)......

855 Tucker v. Tucker (Kan.)....

269

Whitney Co., Sally v. (Wash.)..... 1089 Tucker v. United Railroads of San Fran

Whitney's Estate, In re (Cal.)....

855 cisco (Cal.)...::::.....

835

Whitten v. Dabney, two cases (Cal.)..... 312 Turk, Choi v. (Okl.). ......

1000

Wiley, J. I. Case Threshing Mach. Co. v. Turner, People v. (Cal. App.)...

34

l (Wash.) ............................. 437 Turner, Rockwood v. (Wash.).....

465

Wiley B. Allen Co. v. Edwards (Cal. App.)1066 Turner v. Wilson_(Cal.)........

William Small Memorial Home for Aged Tuttle, Northern Pac. R. Co. v. (Wash.)..

Women v. Collins' Estate (Kan.)........ 274 Tyng v. Constant-Loraine Inv. Co. (Utah) 767

Williams v. Carver (Cal.). ............... 472

Williams, Hart v. (Okl.). ...............1187 Udell, Ex parte (Cal.) .......

23 Wills v. 'E. K. Wood Lumber & Mill Co. Ulm v. Prather (Cal. App.)....

611 Union Coal Co. y. Wooley (Okl.)...

Wilson, Haas v..(

..1018 Union Machinery & Supply Co. v. Darnell Wilson v. Hotchkiss (Cal.)..... (W ash.) ................:::..:;:.

183 Wilson v. Jones (Okl.)......... Union Savings & Trust Co., Remsnider v.

Wilson, Ringer v. (Okl.)......

.1145 __(Wash.) ::::::: :::::::.....::::.. 135 Wilson, Stalick v. (N. M.)...

708 Union Traction Co., Christian v. (Kan.).. 271 Wilson, Turner v. (Cal.)... Union Trust Co., Garland v. (Okl.)...... 676 Wimer. L. & M. Mercantile Co. v. (Kan.) 216 Union Trust Co. of San Francisco, Gray v. Wingo v. State (Okl. Or. App.).... (Cal.) ........

306 Winn, Ex parte (Idaho)............... United Iron Works v. Wagner (Wash.).... 460 Winter v. Eberhardt (Wash.)........ United Railroads of San Francisco, Tuck Woldert Grocery Co., Rose v. (Okl.). er v. (Cal.)....

Wood Lumber & Mill Co., Wills v. (Cal. United States Fidelity & Guaranty Co., App.) .......

613 Stuht y. (Wash.).....

137 Woodward v. Daly-West Min, Co. (Utah).. 782 Upton v. State Industrial Acc. Commission Woodworth v. Dayton (Wash.)........... 790 of Oregon (Or.).... 113 Woody v. Wagner (Wash.)......

819 Utah Banking Co. v. Oler (Utah)......... 781 Wooley, Union Coal Co. v. (Okl.)...

62

Works, Pierce v. (Cal.)................. 802 Van Arsdale-Osbourne Brokerage Co. v. Wright, Marcellus v. (Mont.)....

714 Patterson (Okl.)......................1131 Wright, North British & Mercantile Ins.

927

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Page Wyandotte. Coal & Lime Co. v. Wyandotte Yesler Estate, Inc., Russell & Gallagher

Pav, & Const. Co., two cases (Kan.)....1012 v. (Wash.)...ini.
Wyandotte Pav. & Const. Co., Wyandotte Young v. Buck (Kan.)....... ........ 213

Coal & Lime Co., V., two cases (Kan.). ..1012 | Young y. Buck (Kan.)..... ........1010
Yellowstone' Nat. Bank v. McCullough . Young Men's Christian Ass'n of Seattle v.
(Mont.) .....
. 919 Parish (Wash.)........

785

REHEARINGS DENIED

[Cases in which rebearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.]

? OREGON.
Barnes v. Spencer, 153 P. 47. Troy, In re, 152 P. 103.
Darby v. Hindman, 153 P. 56. Webb v. Isensee, 153 P. 800.

See End of Index for Tables of Pacific Cases in State Reports

THE .

PACIFIC REPORTER:

VOLUME 154

consideration pressed upon the attention of WILSON v. HOTCHKISS. (S. F. 6786.) that court is clearly, fully, and satisfactorily (Supreme Court of California. Dec. 24. 1915. / disposed of. Wilson v. Hotchkiss, 21 Cal. Rebearing Denied Jan. 20, 1916.)

App. 392, 132 Pac. 88. That court very prop1. FRAUDS, STATUTE OF Cm 89 - SALE OF

erly ordered a reversal of the judgment and GOODS-ACCEPTANCE-WORDS.

a new trial for the failure of the trial court Under the statute of frauds providing that to give any instructions touching the statute sales of personal property for a price of $2001 of frauds and its applicability to

of frauds and its applicability to the contract or more shall be invalid unless there be some written memorandum, except where the buyer,

ore under consideration. Upon the new trial accepts part of the goods, the mere words of the such instructions were given. Again the verbuyer, who was already the pledgee in posses- dict of the jury was for plaintiff, and once sion, or proof of his acts of dominion over the

| more defendant appeals. It may not be quesproperty inconsistent with his former rights as pledgee, might establish a transfer of possession

tioned but that the court quite fully and from that of a pledgee to that of complete own- | quite accurately instructed the jury as to the ership.

nature of the acts by a vendee under a parol (Ed. Note.-For other cases, see Frauds, Stat

contract within the statute of frauds which ute of, Cent. Dig. 88 165-173; Dec. Dig. Om

would be sufficient to satisfy the require89.)

ments of that statute. 2. FRAUDS, STATUTE OF 89 - SALE OF

(1, 2] But complaint is made over the GOODS-POSSESSION, Where sale of personal property is made

de court's refusal to give the following: to a buyer in possession, the statute of frauds “Mere words are not sufficient to prove a does not require him to quit it and to retake receipt or acceptance of the personal property possession as the new owner.

to take an oral contract of sale of personal [Ed. Note.-For other cases, see Frauds, Stat-property, for a price exceeding $200, out of the ute of, Cent. Dig. $$ 167-173; Dec. Dig. Om statute of frauds." 89.)

It is said that this refused instruction em3. FBAUDS, STATUTE OF Cm159 – SALE Or bodies an unquestioned principle of law, Goods - TRANSFER OF POSSESSION - SUF first declared in New York in Shindler v. FICIENCY OF EVIDENCE. In an action for the price agreed on a

Houston, 1 N. Y. 261, 49 Am. Dec. 316, and parol sale of stock for a price more than $200, approved in this state in the very early cases to a buyer already in possession as pledgee, evi of Gardet v. Belknap, 1 Cal. 399, and Malone dence held to make the buyer's acceptance of

v. Plato, 22 Cal. 103. These cases and the possession as complete owner a question for the jury.

| principle of law for which appellant contends [Ed. Note.-For other cases, stee Frauds,

spe Frands. therefore demand examination. Shindler v. Statute of, Cent. Dig. $ 378; Dec. Dig. Om Houston was a sale by oral contract of lum159.]

ber in the possession of the vendor, and piled Department 2. Appeal from Superior

on a dock. Standing in front of the lumber, Court, City and County of San Francisco;

the vendor and the vendee agreed upon the John Hunt, Judge.

price and the plaintiff then said "the lumber Action by Virginia E. Wilson against W. J.

is yours." There was absolntely no other Hotchkiss. Judgment for plaintiff, motion

delivery, no change of possession, and the for new trial denied, and defendant appeals.

true meaning of the decision is that where Judgment and order affirmed.

delivery and change of possession are nec

essary to comply with the statute of frauds, Titus, Creed & Dall, of San Francisco, for

an oral declaration does not alone constitute appellant. Franklin P. Bull, of San Fran such delivery. To precisely the same effect cisco, for respondent.

is Gardet v. Belknap, where there was not

the slightest pretense that the brandy which HENSHAW, J. The first trial of this the defendant orally purchased had ever been cause resulted in a verdict and judgment in removed from the plaintiff's store, or that favor of the plaintiff. Defendant's appeal the defendant had exercised or attempted to was considered by the District Court of Ap- exercise any dominion over it, the plaintiff peal of the Third District, where every legal resting his case solely upon the oral declara

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

tion of the vendee at the time of the pur- out multiplying citations, reference may be chase and as a part of the contract of pir: made to Browne Statute of Frauds, 8 321e, chase. In Malone v. Plato defendant: wås' where he states: charged with having purchased horses of the "The conduct of the buyer showing an acplaintiff. The transaction rested wholly in ceptance * * * may be drawn* * * parol, defendant saging: "I will take them.

from what he says." I will be back i huf an hour and pay for And again quoting from the same author, them."'.. The horses remained in plaintiff's page 433, footnote: stable. Defendant refused to complete this "An examination of the cases will show that oral contract, and pleaded the statute of evidence has uniformly been received even in frauds. This court again said that it appears New York of the conduct of the parties; i. e., to be entirely settled that to comply with

what they did and said, without in any way dis

criminating between acts of doing and acts of the requirements of the statute of frauds

saying." “the transfer of possession must be evidenced

See, also, Mecham Sales, $ 382; Williston by acts and cannot be effected by mere words." With the soundness of these decla

Sales, $ 87. It follows that the court ruled rations as bearing upon the facts to which

correctly in refusing to give the proffered

instruction. they were applied, no criticism can be made.

[3] Plaintiff's evidence went to establish But what were the essential facts? They

that her assignor in selling his stock ceased were that for their validity each contract required a delivery of the article sold, and the

to have any connection with the corporation holding is merely that the language of the

and so forfeited his position as manager; vendor that "the property is yours," or the

| that he was temporarily retained by the delanguage of the vendee, "I will take the prop

fendant purchaser in his managerial position erty," does not measure up to the require

at an increased compensation, the increase

being paid by the defendant himself; that ment of the statute.

defendant was the pledgee of the stock at This principle and these decisions have no

the time of the sale; that the vendor was bearing on or relationship to cases such as

jointly liable with the vendee upon certain the one at bar-cases where the actual pos

promissory notes; that as a part of the session is in the vendee and the real question

consideration the vendor was to be released is whether that possession has been transformed from that of bailment or pledge to

from liability on those notes; that in fact

the vendee did pay those notes and never that of complete ownership. Where a sale

made demand upon the vendor for recoupis made to a vendee in possession, whatever

ment; that the vendee publicly declared that may have been the nature of his prior pos

he had bought the vendor's stock; and that session, the law does not require a quitting

the vendor no longer had any interest in the of it and a retaking of possession as the new owner. Snider v. Thrall, 56 Wis. 674, 14 N.

company. Here certainly is enough and more W. $14. All that is required is evidence

than enough evidence to justify the submis

sion of the cause to the jury, whose verdict showing that the possession is retained by the vendee in his new capacity of owner.

will not here be disturbed. Shumway v. RutAnd what evidence will establish this? Man

ter, 8 Pick. (Mass.) 443, 19 Am. Dec. 340. ifestly it may be established by proof of acts

The judgment and order appealed from of dominion over the property inconsistent

are therefore affirmed. with his former holding as bailee or pledgee,

We concur: LORIGAN, J.; MELVIN, J. but equally may it be established by his declarations that he so holds the property as owner. On principle this must be so, for it would indeed be strange if a pledgee, formally reciting the oral contract by which he had

TURNER v. WILSON. (Sac. 2417.) purchased the property and declaring that he (Supreme Court of California. Dec. 21, 1915.) held possession of it no longer as pledgee but 1. ELECTIONS 194 – BALLOTS – DISTINas absolute owner, could have the evidence GUISHING MARKS. of these declarations excluded from the con Under Pol. Code, $ 1211, subd. 4, declaring sideration of the jury upon the ground that

that no mark upon a ballot which is unauthoriz

ed, shall be held to invalidate it unless placed they were mere declarations and not a part

thereon to identify the ballot, ballots will not be of his acts or conduct in dealing with the refused because a voter, after making pencil property. They are essentially a part of his crosses, had stamped a cross over such crosses, acts and conduct, and so we find it declared

or because he stamped a cross in the voting

squares opposite a blank space under the name as “well settled that any acts of the parties

of a candidate for Governor, nor because he indicative of ownership by the vendee may stamped crosses in the voting squares opposite be given in evidence to show the receipt and a proposition submitted; for the purpose of acceptance of the goods to take the case out

the section which was added in 1903 was to pre

vent the rejection of ballots containing unauof the statute of frauds. Conduct, acts, and thorized marks, not the result of an intent on declarations of the purchaser may be given the part of the voter to identify his ballot. in evidence for that purpose.” Garfield v. [Ed. Note.--For other cases, see Elections. Paris, 96 U. S. 557, 24 L. Ed. $21. And with. I Cent. Dig. $8 166, 167; Dec. Dig. 194.)

2. ELECTIONS Om 186—BALLOTS-MARKS. views of the District Court of Appeal as to

As under Pol. Code, s 1211, subd. 1, a l the rejection by the trial court of certain balcross is not essential in the case of a name written on a ballot, the fact that a voter, after

lots on the ground that the same contained writing in a name, placed a cross opposite it, distinguishing marks were correct. will not warrant the rejection of the ballot. The ballot marked “Contestee's Objection

[Ed. Note.--For other cases, see Elections, No. 1,” containing a vote for Turner, was reCent. Dig. $ 159; Dec. Dig. Om 186.]

jected by the trial court because of the fact 3. ELECTIONS Om 186 – BALLOTS – DISTIN that the voter had stamped a cross in the GUISHING MARKS. Because a voter wrote in the words “Yes' |

voting square opposite the blank space under or "No" in the voting squares opposite a bond the name “Hiram W. Johnson," candidate proposition, instead of stamping such squares for Governor. with the appropriate cross, will not warrant the

The ballot marked "Contestee's Objection rejection of the entire ballot, whatever the effect may be on the vote as to the bonds.

No. 9," containing a vote for Turner, was (Ed. Note.-For other cases, see Elections, rejected because of a cross stamped by the Cent. Dig. 8 159; Dec. Dig. 186.]

voter in the voting square opposite the blank 4. ELECTIONS 305 - ELECTION CONTEST - space under the name of "Lucien Shaw," canDETERMINATION.

didate for Justice of the Supreme Court. Where the finding that the contestee received the highest number of votes was correct,

The ballot marked "Contestee's Objection it will not be disturbed because the finding as to No. 12,” containing a vote for Turner, was the number of votes received by each candidate rejected because of such a cross in the votwas incorrect.

ing square opposite the blank space under the (Ed. Note.-For other cases, see Elections, Cent. Dig. $8 317-332; Dec. Dig. Om305.)

name of “U. S. Webb,” candidate for Attor

ney General. In Bank. Appeal from Superior Court, The ballot marked "Contestee's Objection Merced County; E. N. Rector, Judge.

No. 26," containing a vote for Turner, was Election contest by J. L. Turner, Jr., rejected because of a similar cross placed in against W. C. Wilson. There was a judgment the voting square opposite the blank space for contestee, and contestant appealed. The under the name of "William M. Conley," judgment of affirmance by the District Court candidate for Chief Justice of the Supreme of Appeal was vacated, and the cause trans- Court. ferred to the Supreme Court. Affirmed. The ballot marked "Contestee's Objection

Ostrander, Tuttle & Ostrander, of Merced, No. 8,” containing a vote for Turner, was refor appellant. F. W. Henderson, of Merced,

jected because the roter, having written in for respondent. Thomas P. Boyd, of San the name of "L. S. Cardwell” as a candidate Rafael, and W. H. Early, of Petaluma, am- for justice of the peace in the blank space ici curiæ.

left for that purpose on the ballot, had first

placed a pencil cross in the blank space proANGELLOTTI, C. J. This is an action to

vided for that purpose, and had then stamped determine whether the contestant or contes

over said pencil cross a cross with the stamp. tee was elected constable of township No. 4,

The ballot marked "Contestee's Objection Merced county, at the election on November

No. 19," containing a vote for Turner, was 3, 1914. At the canvass of the votes by the

rejected because the voter had marked his board of supervisors the return made was

cross with a pencil in the proper place in that each candidate had received 168 votes,

the case of the first four offices on the ballot, and that neither of them was elected. At

and then, apparently perceiving his mistake, the hearing in the superior court it was had used the voting stamp for the whole of found that contestee (Wilson) had received his ballot, placing the stamped crosses in the 165 votes and the contestant (Turner) 160 case of the candidates already marked with votes, and it was there adjudged that the pencil over the pencil crosses. contestee was elected. The contestant ap The ballot marked "Contestee's Objection peals from the judgment on a bill of excep- No. 25,” containing a vote for Turner, was tions. At the election contestant's name was rejected because the voter had apparently the only name printed on the ballot for the stamped a cross in each of the voting squares office of constable; the supporters of con- of the twenty-second proposition, there being testee being able to express their preference a cross opposite "Yes," and also a cross oponly by writing his name upon the ballot. posite "No."

[1] 1. This cause was originally decided by The District Court of Appeal concluded the District Court of Appeal of the Third that the action of the trial court in rejecting District, which, in view of the provisions of these ballots was correct, except in the case our Constitution, has appellate jurisdiction in of the ballot marked "Contestee's Objection the matter of election contests. Upon peti- No. 8.". tion for a hearing in this court after decision We are satisfied that none of these ballots by the District Court of Appeal, the deci- should have been rejected, and that all of sion of the latter court was vacated, and the them should have been counted for Turner. cause transferred to this court, the members 1 In the year 1903 our election law relating of this court not being satisfied that the to the canvass of votes and marked or spoil

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