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THE

PACIFIC REPORTER

VOLUME 154

(171 Cal. 617)

WILSON v. HOTCHKISS. (S. F. 6786.) (Supreme Court of California.

Dec. 24, 1915.
Rehearing Denied Jan. 20, 1916.)

SALE OF

1. FRAUDS, STATUTE OF 89
GOODS-ACCEPTANCE-Words.
Under the statute of frauds providing that
sales of personal property for a price of $200
or more shall be invalid unless there be some
written memorandum, except where the buyer,
accepts part of the goods, the mere words of the
buyer, who was already the pledgee in posses-
sion, or proof of his acts of dominion over the
property inconsistent with his former rights as
pledgee, might establish a transfer of possession
from that of a pledgee to that of complete own-
ership.

[Ed. Note. For other cases, see Frauds, Stat-
ute of, Cent. Dig. §§ 165-173; Dec. Dig.
89.]

2. FRAUDS, STATUTE OF 89

GOODS-POSSESSION.

SALE OF

Where sale of personal property is made to a buyer in possession, the statute of frauds does not require him to quit it and to retake possession as the new owner.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 165-173; Dec. Dig. 89.]

3. FRAUDS, STATUTE OF 159 GOODS TRANSFER OF POSSESSION FICIENCY OF EVIDENCE.

SALE or
SUF-

a

In an action for the price agreed on parol sale of stock for a price more than $200, to a buyer already in possession as pledgee, evidence held to make the buyer's acceptance of possession as complete owner a question for the jury.

[Ed. Note. For other cases, see Frauds, Statute of, Cent. Dig. § 378; Dec. Dig. 159.]

Department 2. Appeal from Superior Court, City and County of San Francisco; John Hunt, Judge.

Action by Virginia E. Wilson against W. J. Hotchkiss. Judgment for plaintiff, motion for new trial denied, and defendant appeals. Judgment and order affirmed.

Titus, Creed & Dall, of San Francisco, for appellant. Franklin P. Bull, of San Francisco, for respondent.

HENSHAW, J. The first trial of this cause resulted in a verdict and judgment in favor of the plaintiff. Defendant's appeal was considered by the District Court of Appeal of the Third District, where every legal

Upon the new trial

consideration pressed upon the attention of
that court is clearly, fully, and satisfactorily
disposed of. Wilson v. Hotchkiss, 21 Cal.
App. 392, 132 Pac. 88. That court very prop-
erly ordered a reversal of the judgment and
a new trial for the failure of the trial court
to give any instructions touching the statute
of frauds and its applicability to the contract
under consideration.
such instructions were given. Again the ver-
dict of the jury was for plaintiff, and once
more defendant.appeals. It may not be ques-
tioned but that the court quite fully and
quite accurately instructed the jury as to the
nature of the acts by a vendee under a parol
contract within the statute of frauds which
would be sufficient to satisfy the require-
ments of that statute.

[1, 2] But complaint is made over the court's refusal to give the following:

"Mere words are not sufficient to prove a receipt or acceptance of the personal property to take an oral contract of sale of personal property, for a price exceeding $200, out of the statute of frauds."

It is said that this refused instruction embodies an unquestioned principle of law, first declared in New York in Shindler v. Houston, 1 N. Y. 261, 49 Am. Dec. 316, and approved in this state in the very early cases of Gardet v. Belknap, 1 Cal. 399, and Malone v. Plato, 22 Cal. 103. These cases and the principle of law for which appellant contends therefore demand examination. Shindler v. Houston was a sale by oral contract of lumber in the possession of the vendor, and piled on a dock. Standing in front of the lumber, the vendor and the vendee agreed upon the price and the plaintiff then said "the lumber is yours." There was absolutely no other delivery, no change of possession, and the true meaning of the decision is that where delivery and change of possession are necessary to comply with the statute of frauds, an oral declaration does not alone constitute such delivery. To precisely the same effect is Gardet v. Belknap, where there was not the slightest pretense that the brandy which the defendant orally purchased had ever been removed from the plaintiff's store, or that the defendant had exercised or attempted to exercise any dominion over it, the plaintiff resting his case solely upon the oral declara

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 154 P.-1

tion of the vendee at the time of the purchase and as a part of the contract of purchase. In Malone v. Plato defendant was charged with having purchased horses of the plaintiff. The transaction rested wholly in parol, defendant saying: "I will take them. I will be back in half an hour and pay for them." The horses remained in plaintiff's stable. Defendant refused to complete this oral contract, and pleaded the statute of frauds. This court again said that it appears to be entirely settled that to comply with the requirements of the statute of frauds "the transfer of possession must be evidenced

by acts and cannot be effected by mere

words." With the soundness of these decla

rations as bearing upon the facts to which they were applied, no criticism can be made. But what were the essential facts? They were that for their validity each contract required a delivery of the article sold, and the holding is merely that the language of the vendor that "the property is yours," or the language of the vendee, "I will take the property," does not measure up to the require

ment of the statute.

This principle and these decisions have no bearing on or relationship to cases such as the one at bar-cases where the actual possession is in the vendee and the real question is. whether that possession has been transformed from that of bailment or pledge to that of complete ownership. Where a sale is made to a vendee in possession, whatever may have been the nature of his prior possession, the law does not require a quitting

of it and a retaking of possession as the new owner. Snider v. Thrall, 56 Wis. 674, 14 N. W. S14. All that is required is evidence showing that the possession is retained by the vendee in his new capacity of owner. And what evidence will establish this? Manifestly it may be established by proof of acts of dominion over the property inconsistent with his former holding as bailee or pledgee, 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 purchased the property and declaring that he held possession of it no longer as pledgee but as absolute owner, could have the evidence of these declarations excluded from the con

out multiplying citations, reference may be made to Browne Statute of Frauds, § 321e, where he states:

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"The conduct of the buyer showing an acceptance may be drawn from what he says."

And again quoting from the same author, page 433, footnote:

"An examination of the cases will show that evidence has uniformly been received even in New York of the conduct of the parties; i. e., criminating between acts of doing and acts of what they did and said, without in any way dissaying."

Sales, § 87. It follows that the court ruled See, also, Mecham Sales, § 382; Williston correctly in refusing to give the proffered

instruction.

that her assignor in selling his stock ceased [3] Plaintiff's evidence went to establish to have any connection with the corporation that he was temporarily retained by the deand so forfeited his position as manager; at an increased compensation, the increase fendant purchaser in his managerial position being paid by the defendant himself; that

defendant was the pledgee of the stock at the time of the sale; that the vendor was

jointly liable with the vendee upon certain consideration the vendor was to be released promissory notes; that as a part of the from liability on those notes; that in fact the vendee did pay those notes and never made demand upon the vendor for recouphe had bought the vendor's stock; and that ment; that the vendee publicly declared that the vendor no longer had any interest in the company. Here certainly is enough and more than enough evidence to justify the submission of the cause to the jury, whose verdict will not here be disturbed. Shumway v. Rutter, 8 Pick. (Mass.) 443, 19 Am. Dec. 340.

The judgment and order appealed from are therefore affirmed.

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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 prevent 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- Cent. Dig. §§ 166, 167; Dec. Dig. 194.]

2. ELECTIONS 186-BALLots—Marks.
As under Pol. Code, § 1211, subd. 1, a
ten on a ballot, the fact that a voter, after
writing in a name, placed a cross opposite it,
will not warrant the rejection of the ballot.
[Ed. Note. For other cases, see Elections,
Cent. Dig. § 159; Dec. Dig. 186.]

cross is not essential in the case of a name writ

BALLOTS

3. ELECTIONS 186
DISTIN
GUISHING MARKS.
Because a voter wrote in the words "Yes"
or "No" in the voting squares opposite a bond
proposition, instead of stamping such squares
with the appropriate cross, will not warrant the
rejection of the entire ballot, whatever the ef-
fect may be on the vote as to the bonds.

[Ed. Note.-For other cases, see Elections,
Cent. Dig. § 159; Dec. Dig. 186.]
4. ELECTIONS 305-ELECTION CONTEST-
DETERMINATION.

Where the finding that the contestee reIceived the highest number of votes was correct, it will not be disturbed because the finding as to the number of votes received by each candidate was incorrect.

[Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 317-332; Dec. Dig. 305.]

In Bank. Appeal from Superior Court, Merced County; E. N. Rector, Judge.

Election contest by J. L. Turner, Jr., against W. C. Wilson. There was a judgment for contestee, and contestant appealed. The judgment of affirmance by the District Court of Appeal was vacated, and the cause transferred to the Supreme Court. Affirmed.

Ostrander, Tuttle & Ostrander, of Merced, for appellant. F. W. Henderson, of Merced, for respondent. Thomas P. Boyd, of San Rafael, and W. H. Early, of Petaluma, am

ici curiæ.

ANGELLOTTI, C. J. This is an action to determine whether the contestant or contestee was elected constable of township No. 4, Merced county, at the election on November 3, 1914. At the canvass of the votes by the board of supervisors the return made was that each candidate had received 168 votes, and that neither of them was elected. At the hearing in the superior court it was found that contestee (Wilson) had received 165 votes and the contestant (Turner) 160 votes, and it was there adjudged that the contestee was elected. The contestant appeals from the judgment on a bill of exceptions. At the election contestant's name was the only name printed on the ballot for the office of constable; the supporters of contestee being able to express their preference only by writing his name upon the ballot.

[1] 1. This cause was originally decided by the District Court of Appeal of the Third District, which, in view of the provisions of our Constitution, has appellate jurisdiction in the matter of election contests. Upon petition for a hearing in this court after decision by the District Court of Appeal, the decision of the latter court was vacated, and the cause transferred to this court, the members of this court not being satisfied that the

views of the District Court of Appeal as to the rejection by the trial court of certain ballots on the ground that the same contained distinguishing marks were correct.

The ballot marked "Contestee's Objection No. 1," containing a vote for Turner, was rejected by the trial court because of the fact that the voter had stamped a cross in the voting square opposite the blank space under the name "Hiram W. Johnson," candidate for Governor.

The ballot marked "Contestee's Objection No. 9," containing a vote for Turner, was rejected because of a cross stamped by the voter in the voting square opposite the blank space under the name of "Lucien Shaw," candidate for Justice of the Supreme Court.

The ballot marked "Contestee's Objection No. 12," containing a vote for Turner, was rejected because of such a cross in the voting square opposite the blank space under the name of "U. S. Webb," candidate for Attorney General.

The ballot marked "Contestee's Objection No. 26," containing a vote for Turner, was rejected because of a similar cross placed in the voting square opposite the blank space under the name of "William M. Conley," candidate for Chief Justice of the Supreme Court.

The ballot marked "Contestee's Objection No. 8," containing a vote for Turner, was rejected because the voter, having written in the name of "L. S. Cardwell" as a candidate for justice of the peace in the blank space left for that purpose on the ballot, had first placed a pencil cross in the blank space provided for that purpose, and had then stamped over said pencil cross a cross with the stamp.

The ballot marked "Contestee's Objection No. 19," containing a vote for Turner, was rejected because the voter had marked his cross with a pencil in the proper place in the case of the first four offices on the ballot, and then, apparently perceiving his mistake, had used the voting stamp for the whole of his ballot, placing the stamped crosses in the case of the candidates already marked with pencil over the pencil crosses.

The ballot marked "Contestee's Objection No. 25," containing a vote for Turner, was rejected because the voter had apparently stamped a cross in each of the voting squares of the twenty-second proposition, there being a cross opposite "Yes," and also a cross opposite "No."

The District Court of Appeal concluded that the action of the trial court in rejecting these ballots was correct, except in the case of the ballot marked “Contestee's Objection No. 8."

We are satisfied that none of these ballots should have been rejected, and that all of them should have been counted for Turner.

In the year 1903 our election law relating to the canvass of votes and marked or spoil.

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, reading as follows:

"No mark upon a ballot which is unauthorized by this act shall be held to invalidate such ballot, unless it shall appear that such mark was placed thereon by the voter for the purpose of identifying such ballot."

This provision has ever since been in force. The only purpose thereof was to prevent the rejection of ballots containing some unauthorized mark which was not the result of an intent on the part of the voter to identify his ballot. Theretofore the very stringent provisions regarding the marking and rejecting of ballots had been so construed by the courts as to result in the exclusion of numerous such ballots, although it was perfectly clear from an inspection of the ballots themselves that the mark was made without evil intent of any kind. The effect of the amendment is that, where there is no evidence whatever before the trial court, other than the ballot itself, unless such ballot is so marked as to warrant an inference by the trial court that the marking was designedly made by the voter for the purpose of identifying his ballot, the ballot must not be rejected on the ground that it bears a distinguishing mark. We so intimated in withholding our approval of a portion of the opinion of the District Court of Appeal in Gray v. O'Banion, 23 Cal. App. 468, 479, 138 Pac. 977, 981, citing this very provision of our law. Decisions relative to distinguishing marks rendered prior to the amendment we have referred to must be read in the light of the law as it then was. We find on none of the seven ballots to which we have referred anything warranting the inference that the unauthorized mark was placed thereon by the voter for the purpose of identifying the ballot, and there was no other evidence as to the intent of those marking the ballots. Counting these 7 ballots for Turner would give Wilson 165, and Turner 167.

2. Certain ballots counted by the trial court for Wilson, marked "Contestant's Objections A, E, I, J, M, P, U, X, A4, A5, A8, A9, and A10," were properly so counted. As to all of these except the ballot marked "Contestant's Objection P" we are satisfied with the views expressed by the District Court of Appeal in its opinion in this case. The District Court of Appeal held that the trial court should have rejected said ballot "P" on the ground that the same was really a vote for "W. E. Walson" instead of "Wilson," but an inspection of the ballot satisfies us that the trial court was warranted in concluding that the second letter was an "I" instead of an "A," making the name "Wilson." The same may be said as to certain ballots claimed to read "Welson" instead of "Wilson."

3. We have examined the other ballots re

examination we have concluded as follows: The ballot marked "Contestant's Objection D," containing a vote for Wilson, which was rejected by the trial court, should have been counted for Wilson. The same is true of ballots marked "K, L, N, Q, S, A2, and A3." It is obvious from the inspection of the ballot that the alleged identification mark on ballot "D" was not placed thereon with any intent to identify the ballot.

[2] The same is true of the pencil cross on ballot "L," opposite the name of "W. C. Wilson," written in by the voter. A cross is not essential in the case of a name written on the ballot (see subdivision 1, § 1211, Pol. Code), and the pencil cross cannot invalidate unless it appears that it was placed there for the purpose of identifying the ballot. The same is true of ballot "N." The name written on ballot "K" for constable was clearly that of "Wilson." Ballot "Q" is exactly like ballot "D." Ballot "S" furnishes no support for the conclusion that the pencil mark was placed there for the purpose of identifying the ballot.

Ballots "A2 and A3" contain nothing making it appear that the alleged distinguishing marks thereon were placed thereon by the voter for the purpose of identifying the ballots. This makes 8 additional votes for Wilson, bringing his vote to 173.

[3] 4. Ballots marked "Contestee's Objections 16 and 17," each of which contained a vote for Turner, were rejected by the trial court. They should have been counted for Turner. In one case the voter had written in one of the voting squares provided for the vote on certain bond questions the word "Yes"; there being four such propositions so voted on by him. In the other case the voter had attempted to vote on such propositions by writing the word "No" in said voting squares. Whatever may be held to be the effect of this manner of voting on these particular propositions, it is perfectly clear that the word "Yes" in the one case and the word "No" in the other case were not placed on the ballot by the voter for the purpose of . identifying his ballot. The addition of these two votes makes Turner's vote 169. It is to be noted that, in so far as alleged distinguishing marks are concerned, there was no evidence whatever before the court as to the intention of the voter saving and excepting the ballot itself. As to all of the ballots referred to in the bill of exceptions that we have not particularly discussed or mentioned we find that the trial court committed no er

ror.

[4] There is no necessity for a new trial of this case. The bill of exceptions purports to contain an appropriate reference to all the ballots to which objection was made and the rulings of the court thereon, and it is clear that, counting such ballots as should be counted for Wilson and such ballots as should

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