Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

THE

PACIFIC REPORTER

VOLUME 154

(171 Cal. 617)

| consideration pressed upon the attention of WILSON 7. 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. Rehearing 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 $200 of frauds and its applicability to the contract or more shall be invalid unless there be some

under consideration. Upon the new trial written memorandum, except where the buyer, 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

niore 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. Ons

would be sufficient to satisfy the require89.)

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

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

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 bim 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. 88 165-173; Dec. Dig. en statute of frauds." 89.]

It is said that this refused instruction em3. FRAUDS, STATUTE OF 159 - 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, 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 absolutely 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 Apexercise 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 seo same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 154 P.-1

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 pur made to Browne Statute of Frauds, $ 321e, chase. In Malone v. Plato defendant was 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 saying: “I will take them. from what he says." I will be back in half 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 by acts and cannot be effected by mere

See, also, Mecham Sales, & 3S2; Williston

Sales, § 87. It follows that the court ruled words." With the soundness of these declarations as bearing upon the facts to which

correctly in refusing to give the proffered they were applied, no criticism can be made.

instruction.

[3] Plaintiff's evidence went to establish But what were the essential facts? They were that for their validity each contract re

that her assignor in selling his stock ceased quired 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 ment of the statute.

being paid by the defendant himself; that

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 the one at bar-cases where the actual pos

jointly liable with the vendee upon certain session is in the vendee and the real question

promissory notes; that as a part of the is, whether that possession has been trans

consideration the vendor was to be released

| from liability on those notes; that in fact formed from that of bailment or pledge to that of complete ownership. Where a sale

the vendee did pay those notes and never is made to a vendee in possession, whatever

| made demand upon the vendor for recoupmay have been the nature of his prior pos

ment; that the vendee publicly declared that

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 submisshowing that the possession is retained by

sion of the cause to the jury, whose verdict

will not here be disturbed. Shumway y. Rutthe vendee in his new capacity of owner.

ter, 8 Pick. (Mass.) 443, 19 Am. Dec. 310. And what evidence will establish this? Manifestly it niay 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

(171 Cal. 600) would indeed be strange if a pledgee, formal

TURNER V. WILSON. (Sac. 2417.) ly reciting the oral contract by which he had 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. S21. And with. I Cent. Dig. 88 166, 167; Dec. Dig. eww194.]

MEHR

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

As under Pol. Code, s 1211, subd. 1,.& 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 186 - BALLOTS – DISTIN- that the voter had stamped a cross in the GUISHING MARKS.

Because a voter wrote in the words “Yeg 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 1 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. § 159; Dec. Dig. Om 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. 88 317–332; Dec. Dig. Cw305.)

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 voter, 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 brst tour o

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

from the judgment on a bill of excen | 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 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.

[ocr errors]

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

ed ballots was amended by the addition of, which objections were made, and from our subdivision 4 to section 1211, Political Code, 1 examination we have concluded as follows: reading as follows:

The ballot marked "Contestant's Objection "No mark upon a ballot which is unauthorized D," containing a vote for Wilson, which was by this act shall be held to invalidate such bal- rejected by the trial court, should have been lot, unless it shall appear that such mark was placed thereon by the voter for the purpose of

counted for Wilson. The same is true of balidentifying such ballot."

lots marked “K, L, N, Q, S, A2, and A3.” It This provision has ever since been in force.

is obvious from the inspection of the ballot The only purpose thereof was to prevent the

that the alleged identification mark on balrejection of ballots containing some unau

lot “D” was not placed thereon with any inthorized mark which was not the result of

tent to identify the ballot. an intent on the part of the voter to identi

[2] The same is true of the pencil cross on fy his ballot. Theretofore the very stringent

ballot “L,” opposite the name of “W. C. Wilprovisions regarding the marking and re

son," written in by the voter, A cross is not jecting of ballots had been so construed by

essential in the case of a name written on the courts as to result in the exclusion of

the ballot (see subdivision 1, § 1211, Pol. numerous such ballots, although it was per

Code), and the pencil cross cannot invalidate fectly clear from an inspection of the ballots

unless it appears that it was placed there for themselves that the mark was made without

the purpose of identifying the ballot. The evil intent of any kind. The effect of the

same is true of ballot “N.” The name writamendment is that, where there is no evi

ten on ballot “K” for constable was clearly dence whatever before the trial court, other

that of “Wilson.” Ballot “Q” is exactly like than the ballot itself, unless such ballot is

ballot “D." Ballot “S” furnishes no support so marked as to warrant an inference by the for the conclusion that the pencil mark was trial court that the marking was designedly placed there for the purpose of identifying made by the voter for the purpose of identi- the ballot. Ballots “A2 and A3" contain fying his ballot, the ballot must not be re- nothing making it appear that the alleged jected on the ground that it bears a dis- distinguishing marks thereon were placed tinguishing mark. We so intimated in with-thereon by the voter for the purpose of idenholding our approval of a portion of the tifying the ballots. This makes 8 additionopinion of the District Court of Appeal in al votes for Wilson, bringing his vote to 173. Gray v. O'Banion, 23 Cal. App. 468, 479, 138 [3] 4. Ballots marked "Contestee's ObjecPac. 977, 981, citing this very provision of tions 16 and 17," each of which contained a our law. Decisions relative to distinguish- vote for Turner, were rejected by the trial ing marks rendered prior to the amendment court. They should have been counted for we have referred to must be read in the Turner. In one case the voter had written light of the law as it then was. We find on in one of the voting squares provided for the none of the seven ballots to which we have vote on certain bond questions the word referred anything warranting the inference “Yes”; there being four such propositions that the unauthorized mark was placed so voted on by him. In the other case the thereon by the voter for the purpose of iden- voter had attempted to vote on such propotifying the ballot, and there was no other sitions by writing the word “No” in said votevidence as to the intent of those marking ing squares. Whatever may be held to be the ballots. Counting these 7 ballots for the effect of this manner of voting on these Turner would give Wilson 165, and Turner particular propositions, it is perfectly clear 167.

that the word “Yes” in the one case and the 2. Certain ballots counted by the trial word “No" in the other case were not placed court for Wilson, marked "Contestant's Ob- on the ballot by the voter for the purpose of . jections A, E, I, J, M, P, U, X, A4, A5, A8, identifying his ballot. The addition of these A9, and A10,” were properly so counted. As two votes makes Turner's vote 169. It is to to all of these except the ballot marked "Con- be noted that, in so far as alleged distintestant's Objection P" we are satisfied with guishing marks are concerned, there was no the views expressed by the District Court of evidence whatever before the court as to the Appeal in its opinion in this case. The Dis- | intention of the voter saving and excepting trict Court of Appeal held that the trial the ballot itself. As to all of the ballots court should have rejected said ballot "P" | referred to in the bill of exceptions that we on the ground that the same was really a have not particularly discussed or mentioned vote for "W. E. Walson" instead of "Wilson," we find that the trial court committed no erbut an inspection of the ballot satisfies us ror. that the trial court was warranted in con- [4] There is no necessity for a new trial cluding that the second letter was an “I” in- of this case. The bill of exceptions purports stead of an "A," making the name “Wilson." to contain an appropriate reference to all the The same may be said as to certain ballots ballots to which objection was made and the claimed to read “Welson" instead of "Wil rulings of the court thereon, and it is clear son."

that, counting such ballots as should be 3. We have examined the other ballots re- counted for Wilson and such ballots as should

« ΠροηγούμενηΣυνέχεια »