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required of fourth degree members of a fraternal Ralph H. Smith, of Santa Cruz, and Aaron organization, although the publication was in- L. Sapiro, of San Francisco. for appellant. tended to apply only to persons who were candi- u dates for public office at the time, it was libel

libel. U. S. Webb, Atty. Gen., and Frank L. Guer

w ous as to all members of the order of the de- ena, Deputy Atty. Gen., for the People. gree named, since a libel may be upon a class of persons if the tendency of the publication is to stir up riot and disorder.

KERRIGAN, J. The defendant was charg[Ed. Note. For other cases, see Libel and ed by information with the crime of libel, Slander, Cent. Dig. $ 404; Dec. Dig. Om145.) and was tried and convicted. This appeal is 4. CRIMINAL LAW Om824 - TRIAL-INSTRUC- from the judgment of conviction, and from TIONS-REQUESTS.

an order denying defendant's motion for a In a prosecution for libel, where no in

ney V trial struction was requested or given on the subject of privileged communication, the omission to

Upon his arraignment the defendant movspecifically instruct the jury as to defendant'

sed the court to set aside the information upcontention that, since his publication related

on the ground that he had not been legally to an election, it was privileged under Pen. Code, $ 256, was not ground for reversal, since,

committed for trial by a magistrate. The as the jury are judges of both the law and the motion was denied. Such denial is the first facts in criminal libel cases, the defendant of the grounds urged by the appellant for the should have requested a specific instruction if

reversal of the judgment. he desired to have the jury more directly advised as to his contention in regard to privilege

[1] Section 872 of the Penal Code prothan it was by the evidence or argument of vides that, if it appears upon an examination counsel.

that a public offense has been committed, [Ed. Note.-For other cases, see Criminal and there is sufficient cause to believe that Law, Dec. Dig. Om 824.]

the defendant is guilty thereof, the magis5. LIBEL AND SLANDER 148 - CRIMINAL trate must make or indorse on the complaint PROSECUTION-PRIVILEGE-LIBEL OF CANDI

an order, signed by him, to that effect. UnDATE FOR OFFICE-STATUTE. Pen, Code, $ 256, providing that a communi

der the authorities, in so far as the section cation made to a person interested in the com- requires that the order shall be indorsed upmunication by one who was also interested, or on the complaint, it may be regarded as who stood in such relation to the former as to

directory; and it is sufficient if the indorse. afford a reasonable ground for supposing his motive innocent, is not presumed to be mali. | ment be reduced to writing and signed by the cious, and is a privileged communication, did magistrate and entered upon his official dock not render privileged a libelous publication in aet, or upon the complaint or deposition. Peo. newspaper impeaching the loyalty of citizens

ple v. Tarbox, 115 Cal. 57, 46 Pac. 896; Peo. who were candidates for public office, since a candidate for office is as much entitled to pro- ple v. Wilson, 93 Cal. 377, 28 Pac. 1061. In tection from defamation as any other citizen, this case the order of commitment was neiand a public journal or individual who indulges

ulges ther indorsed upon the complaint or deposiin defamatory assertions in respect to him is equally responsible for his acts with those com

tion, nor was the entry of such order in mitting the same offense against private individ the magistrate's docket, made by his stenoguals.

rapher, signed by the magistrate until after (Ed. Note. For other cases, see Libel and

the motion to dismiss the information was Slander, Cent. Dig. $$ 407-411; Dec. Dig. Om 148.)

filed. In other words, the record discloses

that prior to the filing of the motion the mag6. CRIMINAL LAW 116642 – APPEAL AND

istrate did nothing more at the conclusion of ERROR - HARMLESS ERROR – REMARK OF COURT.

the preliminary hearing than to announce In a prosecution for libel, where the court, and cause to be entered in his docket an in the presence of the jury, stated that the pub- order that the defendant should be held to lication might fairly be interpreted to state that all persons admitted to the fourth degree of a

answer in the superior court to a charge fraternal order had taken the published oath, of libel, and fixing the bail. which was libelous, and then explained to the While it is no doubt true that the terms jury that the remarks were not directed to them, of section 872 of the Penal Code should be but solely to counsel incidentally to the denial of a motion to dismiss, repeatedly admonishing

complied with before the district attorney is the jury thereafter that they were not in any warranted in filing an information against a way to be influenced in reaching their verdict person, still it does not appear that the deby the court's observations, that they were fendant was deprived of any substantial the sole judges of the facts, and that the interpretation of the language of the publication was

right by reason of the omission of the magis. a matter for them, the error in the court's state trate. If the motion had been granted, an ment was harmless.

other preliminary examination could have (Ed. Note. For other cases, see Criminal been held under the provisions of sections Law, Cent. Dig. 88 3114-3123; Dec. Dig. Om 116612.)

997-999 of the Penal Code (Ex parte Baker,

88 Cal. 84, 25 Pac. 966; People v. Breen, 130 Appeal from Superior Court, Santa Cruz Cal. 72, 62 Pac. 408), wherein the omission County; W. A. Beasly, Judge.

now complained of could have been supplied Henry S. Turner was convicted of libel, Under the provisions of section 412, art. 6, of and from the judgment and an order denying the Constitution, it not appearing that the his motion for new trial, he appeals. Judg-defendant was injured by the failure of tha ment and order affirmed.

magistrate to make the required indorsement

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

upon the complaint before the information, the Roman Catholic Church, he will no longer was filed, we cannot now, after a fair trial, rest easily in his present peaceful slumber." set aside the judgment of conviction because It would seem that a mere statement of of such omission.

the published oath, coupled with an aver[2] Defendant demurred to the information ment that it was false and malicious, would on the ground that it did not state facts suf- by sufficient to bring the publication within ficient to constitute a public offense. The de the terms of section 248 of the Penal Code. murrer was overruled, and he now challenges It would be a severe reflection upon the conthe correctness of such ruling.

dition of the law of libel if it permitted to go The question presented is whether or not uncondemned the publication of articles such the publication complained of comes withsh as this, if false. It is clear that the pubthe definition of the offense found in section lished oath, if believed by the community to 248 of the Penal Code. That section, in so be taken by the members of the fourth degree far as it is pertinent to the offense here in- of the Knights of Columbus, would have a volved, declares:

tendency to expose those persons to hatred, "A libel is a malicious defamation, expressed contempt, or ridicule. While the publication . * by * * * printing * * * tending * . * to impeach the honesty, integrity, vir:

may not, as claimed by the defendant, directtue, or reputation*

ly impeach their honesty and integrity, it and thereby expose him to public hatred, con- does in a most direct and vital way assail tempt or ridicule."

their loyalty as citizens by charging them The information charges that the defend with the taking of an obligation which is in ant, the proprietor and publisher of a cer- itself a violation of their oath of allegiance tain newspaper called the “World-Issue,” and of the essential duties and bonds of committed the crime of libel, in that on the American citizenship, and thus in a general 220 day of August, 1914, he unlawfully and sense impeaches their reputations, and exwrongfully caused to be printed and published poses them to those attitudes of public feelin said paper in Santa Cruz county, of and ing described in the section of the Penal concerning the prosecuting witnesses, who Code. lived in that county, and who were mem- [3] At the time of the publication of the bers of the fourth degree of that certain article in question it appears from the record fraternal organization known and called the that there was a political campaign in progKnights of Columbus, the following article: ress in Santa Cruz county, where the article

"Can you vote for a man for public office who was published; and perhaps it is fair to insubscribes to the following?

fer from the record that some of the candi. “Knights of Columbus Oath.

dates for election were members of the “(Extracts-4th Degree.)

fourth degree of Knights of Columbus, but “'I do now denounce and disown any alle- none of the prosecuting witne

none of the prosecuting witnesses were such giance as due to any heretical king, prince or candidates. With the record in that condistate, named Protestant or Liberals, or obedi. tion defendant contends: First that the pubence to any of their laws, magistrates or officers. "I do further promise and declare that I will

| lication was not of and concerning the prosehave no opinion or will of my own or any mental cuting witnesses; and, secondly, that the alreservation whatsoever, even as a corpse or leged libelous matter applies to a class or cadaver (perinde ac cadaver), but will unhesitatingly obey each and every command that I

generally to all of the members of the fourth may receive from my superiors in the militia of degree in the fraternal order mentioned, and the Pope and of Jesus Christ.

therefore has no individual application, and “ "That I will in voting always vote for a that for these reasons the judgment of conKnight of Columbus in preference to a Protestant-especially a Mason-and that I will leave

viction cannot stand. my party to do so; that if two Catholics are While the published matter may have been on the ticket I will satisfy myself which is the intended to apply only to persons who were better supporter of Mother Church and vote candidates for office at that election. never. accordingly. " "That Î will not deal with or employ a Pro

theless, in terms and in effect, it refers to testant if in my power to deal with or employ a each and every member of the order of the Catholic. That I will place Catholic girls in degree named. It is undisputed that the pubProtestant families of the heretics. " "That I will provide myself with arms and

lication was false, that the prosecuting witammunition that I may be in readiness when

nesses were members of the society of the the word is passed, or I am commanded to de degree in question, and the inevitable confend the church as an individual or with the mil clusion to be drawn from the article is that itia of the Pope.' "To the quiet, law-abiding, liberty-loving

every member of the order of the fourth deAmerican citizen it is almost unbelievable that gree had taken and subscribed to the publishany fellow citizen or body of them can serious- ed oath. The article asperses the character ly undertake or hope to overthrow our present of such members, and ascribes to them base form of government and replace it with an abso-| lute monarchy. It is still more unbelievable

and dishonest motives, and as to them its that such a proposed monarchy should be dom- publication constituted criminal libel, whethinated by a foreigner, and that such a change er at that time a candidate for public office be brought about under the guise of religion. La Yet if such a citizen will but open his eyes to the condition existing under his very eyes, and might be urged with some force in a civil


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not believe they are good in a criminal pros- | Am. Rep. 757; King v. Root, 4 Wend. (N. Y.) ecution for libel, for, as is said in the case of 113, 21 Am. Dec. 102; McAllister v. Detroit State v. Brady, 24 Pac. 948, 949:

Free Press Co., 76 Mich. 338, 43 N. W. 431, "The law is elementary that the libel need not 15 Am. St. Rep. 318 and cases noted. In the be on a particular person, but may be upon a present case it is not disputed that the pubfamily or a class of persons if the tendency of the publication is to stir up riot and disorder"

| lication was false. It was therefore not and incite to a breach of the peace. It is ob- | privileged. vious that a libelous attack upon a body of men, [6] During the trial of the case, in denying though no individual may be pointed out, may

dia motion made by the defendant to dismiss, tend as much or more to create a public disturbance as an attack on one individual, and a the court gave his reasons therefor in the doubt has been suggested whether the 'fact of presence of the jury, and, among other numbers does not add to the enormity of the things, said that, examining the publication

by its four corners as one would a contract, This statement is a correct exposition of

It might fairly be interpreted to state that the law and of the causes of its existence.

all persons who were admitted to the fourth People v. Crespi, 115 Cal. 50, 46 Pac. 863.

degree of the Knights of Columbus had tak[4, 5] The defendant next contends that the

en the published oath; "in fact, the court court erred in denying his motion for a new

thinks the paper is fairly interpreted to mean trial. He argues that the record supports

just that." This remark, defendant insists, the theory that the publication was made for

constituted error on the part of the learned the purpose of enabling the voters at the ap

trial judge, for which the case must be reproaching election to cost their ballots more

versed. At the time, upon attention being intelligently, and that therefore, under the

called to the apparent inadvertence, the court terms of section 256 of the Penal Code, the

explained to the jury that the remarks were publication must be deemed a privileged com

not directed to them, that they were addressmunication. That section provides:

ed solely to the counsel in the case, and made "A communication made to a person interested

incidental to the denial of the motion before in the communication, by one who was also interested or who stood in such relation to the the court. Subsequently in the instructions former as to afford a reasonable ground for the jury were repeatedly admonished that supposing his motive innocent, is not presumed

they were not to be in any way influenced in to be malicious, and is a privileged communication.”

reaching their verdict by the observations of Assuming for the moment that this publica

the court, that they were the sole judges of tion comes within the privilege of that sec

the facts in the case, and that the interpretation, still we are satisfied that this case

|tion of the language of the publication was a

matter to be wholly determined by them. It should not be reversed upon the ground stated. No instruction was requested or given

will, of course, be presumed in this behalf

that the jury followed the plain admonition upon the subject of privileged communications of the sort defined by that section, but

of the court, and hence that in the matter the record shows that the defendant was

suggested the defendant suffered no injury.

Other points made by the appellant relate relying upon this form of privilege in presenting his defense, and, since the jury are the

to the admission or rejection of evidence, and judges of both the law and the facts in crim

to instructions given to the jury. We have inal libel cases, the defendant should have re

examined them, but without finding therein quested the specific instruction if he desired

anything upon which to ground appellant's to have the jury more directly advised as to

argument for a reversal of the judgment. his contention than it was by the evidence or

The judgment and order are affirmed. argument of counsel. We are further satisfied, however, that section 256 of the Penal

We concur: LENNON, P. J.; RICH

ARDS, J. Code has no application to cases of this character. Whatever the rule may be in other jurisdictions, it has been expressly decided

(28 Cal. A. 796) in this state that a candidate for office is as CARTER v. HOLT et al. (Civ. 1766.) much entitled to protection from defamation

tion (District Court of Appeal, Second District, Cal

District C as any other citizen, and that a public jour-lifornia. Nov. 16, 1915. Rehearing Denied by nal or an individual who indulges in defama- Supreme Court Jan. 13, 1916.) tory assertions about candidates for office is 1. TRUSTS 95—CONSTRUCTIVE TRUST-CONequally responsible for his acts with those TRACT AS SUBJECT-MATTER.

who commit the same offense against private L. Where, by fraud, defendant obtained money - individuals, and that such libelous matter

from plaintiff and therewith paid part of the

purchase price of an automobile on a contract published against a candidate for a public of of sale to him on the installment plan, plaintiff fice is not a privileged communication. Jar could impress a constructive trust, arising from man v. Rea, 137 Cal. 341, 350, 70 Pac. 216;

defendant's fraud, upon such contract, since in Edwards v. San Jose Pr. & Pub. Co., 99 Cal.

proper case there is no reason why a contract

or lease, as well as any other property, may not 431, 34 Pac. 128, 37 Am. St. Rep. 70; Aldrich | be subject to a constructive trust. v. Press Pr. Co., 9 Minn. 133 (Gil. 123), 86 Am. (Ed. Note. For other cases, see Trusts, Cent. Dec. 84; Sweeney v. Baker, 13 W. Va. 158, 31 | Dig. SS 145–147; Dec. Dig. 95.]

Oma For other cases seo samo topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

2. TRUSTS Om371 – GENERAL DEMURREB , that a new deal between the seller, the original CONSTRUCTIVE TRUST.

contractor for the car, who had paid part of In an action to impress a constructive the price with money fraudulently obtained from trust upon a contract of sale of an automobile plaintiff, and his assignee, purporting to cancel on the installment plan, the allegation of the the assigned contract and to make a new concomplaint that an assignment was made to a tract of sale direct with the assignee, was a mere defendant by the defendant wbo fraudulently ob- subterfuge. tained money from plaintiff without considera- 1 Ed. Note. For other cases. see Trusts, Cent. tion “after knowledge by (the assignee) that | Dig. 88 600–603: Dec. Dig 372.1 said automobile had been purchased with plaintiff's money and funds," was sufficient, in the absence of special demurrer, as alleging that pri

Appeal from Superior Court, Los Angeles or to the assignee's acquisition of the automo County; Chas. Monroe, Judge. bile and contract of purchase he had knowledge

Action by Grace M. Carter against Ira W. of plaintiff's rights.

Holt and others. From a judgment for plain[Ed. Note. For other cases, see Trusts, Cent.

tiff, and an order denying a motion for new Dig. SS 588-599; Dec. Dig. 371.)

trial, defendant Linney appeals. Judgment 3. TRUSTS O356–CONSTRUCTIVE TRUST—NoTICE TO ASSIGNEE OF RES-EFFECT.

and order affirmed. Where the assignee of a contract of sale of

Robt. T. Linney and Kendrick & Ardis, all an automobile on the installment plan took the same with knowledge that it had been paid for of Los Angeles, for appellant. Ralph W. with funds fraudulently procured from plaintiff, Schoonover and Harriman, Ryckman & Tuthis position as to money loaned or paid on the tle, all of Los Angeles, for respondents. contract to the assignor thereof was that of a second lienor, subordinate to the rights of the defrauded party.

SHAW, J. The complaint shows that by [Ed. Note.--For other cases, see Trusts, Cent. means of fraud and false representations deDig. $8 529–538; Dec. Dig. 356.)

fendant Holt obtained from plaintiff the 4. ATTORNEY AND CLIENT C88 – RIGHT OF sum of $1,151.37; that he entered into a conATTORNEY TO CONDUCT OWN CASE. Where an attorney who was sued appeared

tract with an automobile company for the in court by an attorney of record who conducted purchase of an automobile for the sum of the case to a point where defendant proposed to $1,375, and of the money so fraudulently ob. cross-examine plaintiff's witness, it appearing

Stained from plaintiff he paid thereon $625 ; that he would be a witness in his own bebalf, the court properly denied him the right to cross

that thereafter, and before the filing of the examine.

complaint herein, Holt was arrested, charg[Ed. Note.-For other cases, see Attorney and led with the embezzlement of said sum OI Client, Cent. Dig. S8 161–163; Dec. Dig. 88.] money so procured from plaintiff ; that he J. APPEAL AND ERROR 1170 – REVIEW - employed defendant Linney as attorney to HARMLESS ERROR.

defend him upon said charge of embezzleUnder Const. art. 6, § 412, providing that . no judgment shall be set aside or new trial / inent, and to whom he assigned said contract granted for any error in procedure, unless, aft- for the purchase of the automobile upon er the court shall be of opinion that the error which he had paid $625 of plaintiff's money ; complained of resulted in a miscarriage of justice. where an attorney, defendant in an action. "that said assignment was made without conwas represented by an attorney of record who sideration and after knowledge by said Linconducted the case until defendant desired toney that said automobile had been purchased cross-examine a witness, which leave was refus

with plaintiff's money and funds as aforeed him because it appeared that he would testify in his own behalf, the action of the court, if

said"; that the automobile is in the posseserroneous, was not reversible error.

sion of Holt and Linney. In addition to gen[Ed. Note.-For other cases, see Appeal and eral relief asked, the prayer of the complaint, Error, Cent. Dig. 8S 4032, 4066, 4075, 4098, 4101, 4454, 45404545; Dec. Dig. ew1170.)

, so far as appellant is concerned, is that plain

tiff be declared the owner of said contract 6. TEUSTS 373 - CONSTRUCTIVE TRUSTS

and automobile to the extent of the appliSUIT TO ENFORCE-EFFECT OF FINDING.

In an action to impress a constructive trust | cation of plaintiff's money in the purchase upon a contract of sale of an automobile on the thereof so made by Holt. installment plan, the court's finding that when

The court, among other things, found that the assignee of the contract presented the assignment to the seller, it recognized and approve plaintin

plaintiff was entitled to an equitable lien uped the same in writing, whereupon the assignee on the automobile to the extent of $625 so paid the installment due, and that thereafter the invested therein, and that Linney held the seller with knowledge that the money paid it by

nt fol. the purchaser was plaintiff's money, attempted to rescind the contract, was sufficient to nega-lowed, from which, and an order denying tive the allegation of the answer that the as- his motion for a new trial, Linney appeals. signee purchased the automobile from the com

1 [1, 2] Appellant's first contention is that pany by an independent contract after it had repudiated the assigned contract.

the complaint (to which no demurrer was in[Ed. Note.-For other cases, see Trusts, Cent. terposed) fails to state facts sufficient to Dig. 88 604-606; Dec. Dig. Om373.]

constitute a cause of action against him. 7. TRUSTS 372 - CONSTRUCTIVE TRUST - This for two reasons: First, it is not alleg. SUBTERFUGE IN SALE-SUFFICIENCY OF Evi ed that title to the automobile passed to DENCE.

Holt, but that he merely held a contract in In an action to impress a constructive trust on a contract of sale of an automobile on the the form of a lease for its purchase. No installment plan, evidence held sufficient to show ground is assigned for this contention, and

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we perceive no reason why, in a proper case,, baker Company by an independent contract a trust might not be impressed upon a con- after it had repudiated the contract made tract or lease, as well as upon other property. with Hot and which he had assigned to LinSecond, it is claimed the complaint fails to ney. As to this the court, in effect, found show that prior to Linney's acquiring the that upon Linney presenting the assignment automobile and contract of purchase he had to the company it, in writing, recognized and knowledge of plaintiff's rights therein. In approved the assignment; whereupon Linney the absence of a special demurrer, we think paid the installments thereon then due; that the allegation that the assignment was made thereafter the company, having knowledge to him by Holt without consideration and that the $625 paid to it by Holt was plain"after knowledge by said Linney that said stiff's money, and after the assignment made automobile had been purchased with plain- to Linney with its approval, attempted to tiff's money and funds as aforesaid," was a rescind the contract after Holt had assignsufficient showing of the fact. The words “as ed the same to Linney who had, by reason of aforesaid" refer to the fraudulent acts of said assignment, paid the arrearage. The Holt by means whereof he obtained the mon- finding is sufficient to negative the allegation ey and invested it in the automobile, all of made in the answer. which, it is alleged, was known to Linney. [7] Appellant attacks as being without sup

[3] It is next claimed that the judgment is port a number of findings based upon and in not supported by the findings, in that it ap- accordance with facts, which the evidence peared that after Linney acquired the con- and fair inferences to be drawn therefrom tract upon which Holt had paid the $625, tended to prove. The evidence tends to eshe paid thereon $260, and the judgment ac- tablish the fact that appellant, when he accorded plaintiff a lien thereon for her $625 quired the assignment from Holt, knew the which was declared prior to any rights of manner in which the latter had obtained Linney by reason of the $260 so paid by him. plaintiff's money, and knew that he had Since Linney took the contract with knowl. wrongfully and in violation of the trust reedge of plaintiff's rights thereunder, his posi- posed in him invested $625 thereof in the tion as to money loaned or paid thereon must automobile, upon which there were some inbe deemed that of a second lienor, just as if stallments due and unpaid. Linney, accomhe had a second mortgage on the property! panied by Holt, went to the office of the Stu

[4, 5] Defendant Linney appeared in court debaker Company, the seller of the car, by an attorney of record, who conducted his where the assignment of the contract was case to a point in the proceedings where de- made, Linney stating that he desired to get fendant Linney proposed to cross-examine the car the possession of which it appears one of plaintiff's witnesses; whereupon, it Holt had theretofore delivered to the comappearing that he would be a witness in his pany. Upon the making of the assignment own behalf, the court denied him the right to and Linney paying the installments then due cross-examine the witness. Thereupon his and unpaid, the company indorsed thereon, attorney of record continued the conduct of “We, the Studebaker Company, consent to the case, cross-examining the witness. It is the assignment, and fully release Mr. Holt claimed this was reversible error. Had ap- hereunder,” signed by William J. La Casse, pellant had no attorney of record represent- sales manager, and thereupon delivered the ing him, no doubt exists as to his right to automobile to Linney. Several days afterappear in propria persona and conduct his wards, all the parties ignoring this comcase, and notwithstanding the incidental in- pleted transaction, made a new deal which convenience, he could also have appeared as purported to cancel the contract so assigned a witness. But where a party appears in by Holt to Linney and pursuant to which court as a litigant represented by an attor- the company had delivered the car to Linney, ney of record, the court may insist that such and a new contract was made direct with attorney and not his client, appearing as a Linney which, so far as it concerned the party litigant only, conduct the trial. Boca, amount, terms, and conditions, was identical etc., R. R. Co. v. Superior Court, 150 Cal. with the terms and conditions contained in 153, 88 Pac. 718. Indeed, courts have not in the contract made with Holt and by him asfrequently insisted that where more than one signed to Linney. The company recognized attorney appears, one only shall conduct the the existence of its contract with Holt and examination of witnesses. But, however this his right to assign the contract, pursuant to may be, and conceding the ruling was er- which it delivered the car to Linney and reror, it is impossible to perceive how defend leased Holt from further liability thereon. ant was prejudiced thereby, and hence it may The court was justified, under all the cirbe disposed of by applying thereto the provi- cumstances, in its conclusion that this was a sions of section 442, article 6 of the Consti- mere subterfuge. tution.

The judgment, which appears to be a right[6] There is no merit in the contention that eous one, and the order denying appellant's the court failed to find upon an issue ten- motion for a new trial are affirmed. dered by the answer, to the effect that appellant purchased the auto from the Stude- We concur: CONREY, P. J.; JAMES, J.

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