text:
    [Crim. No. 3737.
    In Bank.
    June 19, 1934.]
    THE PEOPLE, Respondent, v. C. JACK GAINES, Appellant.

      Paul E. Gehres, R C. Pardoe and J. Thomas Russell, for - Appellant.
    U. S. Webb, Attorney-General, and James F. Howie, Deputy Attorney-General, for Respondent.
   THE COURT.

After consideration of this appeal, we hereby adopt, as part of this decision, the following language taken from the opinion prepared by Mr. Justice York for the honorable District Court of Appeal for the Second Appellate District, Division One:

“The appellant was tried upon an indictment containing ten counts charging him with the offense of forgery, and upon two informations containing ten counts charging him with the offense of grand theft. From judgment of convictions on all counts charged in said indictment and informations and from the order of the trial court denying his motions for a new trial, appellant prosecutes this appeal.
“Defendant was charged with the theft of $9,500 in money, the personal property of Lola Carr Harman, real property of the value of $10,000 belonging to said Lola Carr Harman, and stock of the J. C. Penney Company of the value of $92,716.25, also the property of said Lola Carr Harman. In addition, he was charged with the theft of $350 in money, the property of C. M. and Ruth Bowler. The indictment charged the forging of the name of Lola Carr Harman to ten stock transfers and assurances and letters of attorneys, and the revocable power to receive and transfer certain stock certificates of the J. C. Penney Company.
“As a defense, appellant claimed that he had formed a partnership with Mrs. Harman for the purpose of conducting and maintaining a general brokerage and real estate business and that, in pursuance of that association and relationship, appellant was to continue his already established business as a real estate broker, but on a more expanded and extensive scale due, in the main, to the fact that the said Lola Carr Harman had and did agree to furnish large sums of money to be used in the conduct of the business of making property loans, and that all profits—the result of said loans—were to be shared equally by appellant and said Lola Carr Harman. In her testimony, the said Mrs. Harman denied the existence of such relationship and charged that appellant at various times had forged her name and signature to certain documents,' instruments and securities, and by reason of such forgeries, appellant secured divers sums of money and converted the same to his own personal use.
“It is contended by appellant that since he ‘admitted the receipt of the money and property in question as alleged in the counts for grand theft and upon which he was being tried, and advanced no theory or defense other than his contention that he did so, not with a felonious intent, but by virtue of an agreement between himself and the said Lola Harman that the property should be used in their common business enterprise, then the paramount and vital issues of fact of the cause were: 1. Did such an agreement exist as between appellant and the said Lola Harman, and 2. Did the appellant forge the signatures to the several documents in question or did the said Lola Harman actually sign them as contended by appellant. ’
“Predicated upon this theory, appellant contends that the trial court erred in refusing to grant defendant’s handwriting witness sufficient time to complete his investigation of the handwriting in issue before offering his testimony—such testimony to be offered for the purpose of rebutting expert evidence which had been given by witnesses on behalf of the People in an effort to prove that forgery had been committed by appellant. Appellant also alleges error on the part of the trial court in sustaining the People’s objection limiting scope of expert testimony; in refusing to give certain instructions requested by defendant, and in refusing to direct the jury to return a verdict in favor of defendant.
“ The trial of this ease was begun in the superior court on October 11, 1932; on October 13, three handwriting experts testified for the prosecution, at which time certain exhibits involving both the handwriting of the defendant and the handwriting of the complaining witness were introduced in evidence. On October 20, 1932, counsel for defendant asked the court for a recess until the following morning ‘so that we can have the benefit of the examination by a handwriting expert’. The court refused this request, but did grant a recess until 2 o’clock of the same day, at which time the attorney for defendant called as his witness, Milton Carlson, handwriting expert, and by his testimony sought to rebut evidence given by handwriting experts, who had previously testified in favor of the prosecution. Since the testimony which appellant sought to rebut was given on October 13, 1932, we are of,the opinion that sufficient time intervened between that date and October 20th, the date upon which Mr. Carlson was called, within which he could have made an examination of the exhibits referred to, and that no error was committed by the trial judge in refusing to grant a recess until the next day.
“ ‘ “It is a settled rule of practice that an application for a continuance is addressed to the sound discretion of the trial court, and its ruling will not be reviewed except for the most cogent reasons. The trial court is apprised of all the circumstances of the case and the previous proceedings, and is, therefore, better able to decide upon the propriety of granting the application than an appellate court; and when it exercises a reasonable and not an arbitrary discretion, its action will not be disturbed.” (5 Cal. Jur. 968.) ’ (People v. Collins, 195 Cal. 325, pp. 332, 333 [233 Pac. 97, 100].) There is nothing in the record that suggests the exercise of an arbitrary discretion of the trial court in refusing to grant the recess here referred to.”

This brings us to the further contention that the trial court erred in limiting the scope of expert testimony. The said handwriting expert, when asked if he had come to any conclusion regarding the questioned documents, particularly as to whether or not they had been written by defendant or by Mrs. Harman, answered that because of lack of sufficient time within which to make a proper examination of the several exemplars of handwriting, he could not express “a definite conclusion”. A further question as to whether or not he had come to any conclusion with regard to the characteristics of the handwriting of either party was answered in the affirmative. Thereupon he was asked by counsel for the defendant to point out to the jury the various characteristics in the respective handwritings which would indicate, or would not indicate, that Mrs. Harman may have been the author thereof. This was objected to by the prosecution on the ground that the witness had already stated he had not come to any conclusion about any questioned documents in the case, which objection was sustained by the court. Thereafter the court persistently refused to permit the witness to answer similar questions along the same line of examination by counsel for defendant in an attempt to have him indicate some of the “various characteristics” in the handwriting of Mrs. Harman, thereby introducing evidence directed toward establishing a reasonable doubt as to defendant’s guilt. The following is an illustration of the type of question referred to: “Q. By Mr. Bird: I will call your attention to the capital letter ‘L’ in the various questioned documents and more particularly to the little upstroke at the end of the ‘L’, which I will illustrate on the blackboard, right there at the end (indicating), a kind of an upstroke at the end of the capital ‘L’, and ask you if in examining any of the exhibits offered here as exemplars of Mrs. Lola Harman’s handwriting you found that she ever formed capital ‘L’s’ in that form or with that characteristic?” In sustaining further objections to questions such as the one just quoted, the court said: “A witness is entitled, under the exception of the rule to express his opinion. It is not a proper function of an expert to come here and point out a lot of similarities, and dissimilarities, without expressing an opinion. Anyone can do that. Objection sustained.”

The trial court apparently based this ruling upon the theory that unless an expert witness first expresses an opinion with reference to the ultimate fact at issue, he may not testify to any facts within his knowledge as an expert which might determine said ultimate fact. Such is not the law.

Section 1944 of the Code of Civil Procedure provides: “Evidence respecting the handwriting may also be given by a comparison, made by the witness or the jury, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge.” There is nothing in this statute to indicate that before a “comparison” may be made, it is necessary that a witness express an opinion regarding the result of such comparison. An expert witness in some instances may state his final conclusion regarding a fact at issue; in others he may testify solely as to the several facts upon which a final conclusion could be predicated, or he may testify in both respects; often he expresses his opinion through the medium of the “hypothetical question”. In other words, the foundational facts are distinct from the ultimate fact at issue and they may be established by the testimony.of either lay or expert witnesses. (See 10 R. C. L., p. 994; 11 R. C. L., pp. 573, 590; 10 Cal. Jur., p. 960; Rogers on Expert Testimony, p. 303, citing Riordan v. Guggerty, 74 Iowa, 688 [39 N. W. 107].)

It follows that here the trial court erred in limiting the scope of examination of said expert witness in the manner aforesaid. The question is: was the error prejudicial? We think not. The predominating characteristics of the handwriting of these signatures are plainly visible. Comparison of them could have been made as well by the jury as by the expert witness. Inasmuch as the latter had reached no definite conclusion in the matter, his testimony would probably have been largely cumulative and of no substantial value. Furthermore, there is no doubt of defendant’s guilt. We have examined the entire record with care and, indeed, the trial court was justified in declaring when about to pronounce judgment: “I am constrained to say in your case that it was an exceedingly flagrant and aggravated one, and I am in entire accord with the verdict of the jury.” Under the particular circumstances of this case, the admission or rejection of the testimony in question could not have affected the final result reached by the jury; hence our conclusion that said error affords no basis for reversal of the judgments, or any of them, and that defendant suffered no prejudice.

We find no merit in appellant’s contentions that the court erred in refusing to give to the jury certain instructions requested by him and in refusing to direct the jury to return a verdict in his favor. So far as appears, the instructions given by the court to the jury covered the same subjects, and covered them correctly.

The judgments of conviction and the orders denying motion for new trial are affirmed.


source: Caselaw Access Project

author: SHENK, J.

license: Public Domain

text:
    [L. A. No. 14559.
    In Bank.
    June 22, 1934.]
    VITIMIN MILLING CORPORATION (a Corporation), Petitioner, v. THE SUPERIOR COURT OF THE COUNTY OF LOS ANGELES et al., Respondents.

      Fitzpatrick & Dickey for Petitioner.
    Everett W. Mattoon, County Counsel, Fred M. Cross, Deputy County Counsel, and Mathes & Sheppard for Respondents.
   SHENK, J.

Prohibition. From January 12 to 18, 1933, an action entitled “J. J. Schumacher v. E. M. Allison, Vitimin Milling Corporation, et al., No. 331685”, was on trial with a jury in department eleven of the Superior Court in and for Los Angeles County. On January 18th, when both sides had rested, a motion for a directed verdict was made on behalf of the defendant Vitimin Milling Corporation, petitioner herein. The motion was granted. A similar motion was made on behalf of other defendants and denied. As to the petitioner the following minute order was entered: “Motion of defendant, Vitimin Corporation, a corporation, for an instructed verdict is granted ...” The jury was instructed and retired for deliberation at 4:17 P. M. on January 18th. At 9:45 P. M. of the same day the jury returned to the court and reported inability to agree upon a verdict, whereupon, by stipulation, an order was entered in the minutes that “it appearing to all concerned the jury is unable to reach a verdict, the jurors are discharged from the case and a mistrial is ordered”. Thereafter on January 20th the judge of department eleven signed and filed an order “that the motion for a directed verdict, made by counsel in behalf of the defendant Vitimin Mining Corporation, be granted”. The cause was set down for retrial as to all defendants in department sixteen and came on regularly for trial in that department on May 3, 1933, before the respondent judge. During the trial then in progress and on May 4th the judge of department eleven signed and filed a purported judgment reciting the fact that an order had been made in said action granting a motion for a directed verdict as to the petitioner and wherein it was “ordered, adjudged and decreed that the defendant, Vitimin Milling Corporation, do have judgment from plaintiff”. Thereafter on the same day in department sixteen counsel for the petitioner objected to the introduction of any further evidence as to the petitioner on the ground that the principles of res judicata barred any further proceeding in the matter. Whereupon counsel for the plaintiff moved the court to set aside said judgment of May 4th, on the ground that the same was void on the face of the record, in that it appeared of record that no verdict had been returned or entered in favor of the petitioner at the former trial or at all; that the trial as to the petitioner had not been completed, and that the order of January 18th, directing a mistrial, was general and applied to all the defendants. The objection to the further introduction of evidence as to the petitioner was overruled and the motion to set aside the judgment of May 4th was granted. The further trial of the action was then continued to May 22d. Pending such further trial and on May 10, 1933, the judge of department eleven signed and filed an order purporting to change and correct nunc pro tunc the minute order directing a mistrial in general terms to read: “The jurors are discharged from this case and a mistrial is ordered as to all defendants except Vitimin Milling Corporation, a corporation.” In advance of the further trial to be had on May 22d, the present proceeding was commenced, to wit: on May 17, 1933, to prohibit the court in department sixteen from proceeding with the further trial of the action as to the petitioner. An alternative writ was issued and a general demurrer to the petition was interposed.

There are at least two reasons why the petition should be denied. In the first place it appears without dispute that although a motion for a directed verdict as to the petitioner was made and noted by the minute order as “granted”, no instruction to return a verdict was submitted to the jury; no request was made by the petitioner for an instruction to the jury to return a verdict; and no verdict was returned either by the jury, by the court, or at all, and there is no showing or intimation that the jury in this case would have refused to return a verdict for the petitioner, if it had been instructed so to do. That the court has the power to direct the jury to return a verdict in a proper case cannot be questioned. Nor is it disputed that the return of a verdict in such a case is a ministerial act. A verdict in any case must be in writing. (Sec. 618, Code Civ. Proc.) When the verdict is rendered an entry thereof must be made in the minutes of the court. (Sec. 628, Code Civ. Proc.) As to these requirements there is no distinction between a verdict returned by the jury after deliberation and one returned by direction of the court. In each ease the verdict serves as a basis for the entry of a judgment thereon. In the absence of a verdict entered as required by law there is no finality to the proceedings. The order merely granting the motion for a directed verdict is not an appealable order. (Sec. 963, Code Civ. Proc. ) And we know of no authority in law for the entry of a judgment which would, in the absence of a verdict, in any way constitute a judgment on a verdict. The purported judgment of May 4th was therefore void on the face of the record and was properly set aside by the respondent judge. The necessity for this conclusion is apparent when it ■ is appreciated that the regularity of a proceeding may, as it does here, depend on the form which it takes under the rules of practice. Rights which depend on the form then become matter of substance. Without the entry of a verdict, the aggrieved party, if the verdict be against him, would be deprived of his right to move for a judgment notwithstanding the verdict, as provided in section 629 of the Code of Civil Procedure. Here, without the entry of a judgment, at least regular in form after the rendition of a verdict, the plaintiff would have nothing from which he could then appeal. Since the judgment signed by the judge in department -eleven on May 4th was void, it was no judgment at all, and the respondent judge on that day was confronted with the question whether the trial of the action as to the petitioner had been terminated. It either had or it had not. The respondent judge was justified in concluding that it had not. The former trial was not complete and would not be complete until the jury had rendered a verdict. (San Joaquin etc. Irr. Co. v. Stevinson, 30 Cal. App. 405 [158 Pac. 768] ; 24 Cal. Jur., p. 718.) As stated, no verdict had been entered in the case on trial before the respondent court. When the jury was discharged without the rendition of a verdict the jury, in effect, was prevented from giving a verdict under appropriate instructions and a new trial was in order under section 616 of the Code of Civil Procedure. A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury, court or referee. (Sec. 656, Code Civ. Proc.) Since no verdict was rendered and no valid judgment entered the judge in department eleven, by the belated nunc .pro tunc order of Hay 10th, could not complete the trial which had not theretofore been completed, and the new trial in progress was properly on trial as to all the defendants and as to all issues.

The second reason why the petition herein must be denied is that the respondent court has jurisdiction of the parties, including the petitioner, and of the subject matter of the action. Pleas of res judicata and estoppel are defensive matter, and the respondent court has jurisdiction to determine the merits thereof when interposed properly by pleading or proof. (United Security etc. Co. v. Superior Court, 205 Cal. 167 [270 Pac. 184]; Baird v. Superior Court, 204 Cal. 408 [268 Pac. 640]; 21 Cal. Jur., p. 583.) Any alleged error in ruling upon the plea would be reversible on appeal. This alone would be sufficient ground upon which to deny this petition, but since the other questions are in the case they have been determined for the guidance of the trial court.

The peremptory writ is denied.

Curtis, J., Preston, J., Waste, C. J., and Langdon, J., concurred.


author: PLUMMER, J., pro tem.

text:
    [Sac. No. 4818.
    In Bank.
    June 22, 1934.]
    LUSITANIAN-AMERICAN DEVELOPMENT COMPANY (a Corporation), Respondent, v. THE SEABOARD DAIRY CREDIT CORPORATION, Appellant.

      Walter J. Little, A. J. Carlson and Robert W. Anderson for Appellant.
    Edmund de Freitas and C. H. Hogan for Respondent.
   PLUMMER, J., pro tem.

The plaintiff had judgment in this action for the sum of $8,585 against the defendants George W. Smith, Ella Smith, Jacob Kooyman, Peter Kooyman, W. Feinstein, John Kooyman, The Seaboard Dairy Credit Corporation, Ed Haeeker and Ord L. Leachman, for and on account of the alleged conversion of a certain herd of cattle. From this judgment the defendant Seaboard Dairy Credit Corporation appeals.

The record shows that prior to the fifteenth day of February, 1928, the plaintiff was the owner of certain real estate situate in the county of San Joaquin, and also of a certain herd of cattle then running, being and kept on said real estate. On the fifteenth day of February, 1928, the plaintiff and the defendants Kooyman entered into a conditional contract of sale for the purchase of real estate, and also of the herd of cattle referred to, consisting at that time of 140 milk cows, 82 heifers, ranging in age from one month to two years, and two bulls two years old, most of the herd being branded “Rr-X” on the right hip. The contract price for the property covered by the conditional sales contract was the sum of $100,000, of which sum $18,000 was the agreed purchase price of the cattle.

The conditional contract specified that the purchaser should not transfer or sell said property without the written consent of the plaintiff. The Kooymans remained in possession of said property until on or about the seventh day of December, 1929, on which date, with the consent of the plaintiff, the Kooymans transferred their interest in the conditional sales contract to George W. Smith and Ella Smith, his wife, subject, however, to the payments and covenants contained in the conditional contract of sale.

On the twenty-seventh day of December, 1929, the Smiths, without the consent of the plaintiff, assigned their interest in said contract, and delivered possession of both the real and personal property described therein to the defendants Otto Prinz and Eose Prinz. Subsequently, and on or about the twenty-seventh day of January, 1930, the defendants Prinz sold and transferred their interest in said herd of cattle to the defendant Feinstein. Feinstein was familiar with the ranch and the personal property, and had previously had dealings with the Kooymans, and also with Hr. Nunes, president of the plaintiff corporation. Feinstein purchased the cattle without making any investigation as to the ownership thereof. After the purchase just recited the cattle were left upon the ranch for the purpose of disposing of them at public auction. For this purpose the defendant Feinstein secured the services of the Seaboard Dairy Credit Corporation to act as auctioneer.

On the third day of February, 1930, the cattle were sold at public auction at the ranch referred to and covered by the conditional contract of sale. Defendants Haecker and Leachman acted as auctioneers and employees of the defendant Seaboard corporation. After the sale the Seaboard Dairy Credit Corporation paid to the defendant Feinstein the proceeds derived from said auction sale, after having deducted an agreed percentage for commissions in payment of its services in conducting the sale.

The appellant’s preliminary statement of the questions involved upon this appeal are:

1. Whether the plaintiff and respondent knew of the pendency of the sale of the cattle;

2. Whether the cattle sold were actually cattle belonging to the plaintiff; and

3. Whether the appellant was guilty of acts amounting to conversion.

Elaborating upon these points it is contended that the evidence is insufficient to support the finding that the plaintiff did not acquiesce in the sale; that the evidence is insufficient to support the finding that appellant sold 101 head of cattle described in the conditional contract referred to herein; also, that the evidence is insufficient to support the finding of conversion of the cattle on the part of the Seaboard Dairy Credit Corporation. For convenience we will reverse the order of the points listed by the appellant, and answer the third objection first.

The record shows, in connection with the testimony of Mr. Harden, who stated that he was the manager of the Seaboard Dairy Credit Corporation, having its offices at Modesto, that an agreement was entered into between W. Feinstein and the Seaboard corporation for the sale of 101 head of dairy cattle and two bulls, the cattle being described as then being one-half mile north of Bethany, which the testimony shows to be the location of the real property described in the agreement.

To show the agency and the active participation of the Seaboard Dairy Credit Corporation in the conversion of the cattle we quote from the agreement the following:

“Party of the first part to provide an auctioneer and do the advertising and promotion of said sale; unless total proceeds of sale amount to less than $2,000.00 then party of the second part shall pay for advertising. Posting of bills and any local advertising, shall be done by party of the second part. Party of the second part shall be responsible for all representations made by him, as to property offered for sale, and agrees to indemnify the party of the first part and buyers at said sale for any damages sustained by reason of any misrepresentations made by him regarding property sold. Party of the first part assumes no responsibility for any stock sold which is not settled for. Party of the second part agrees that all of said property above mentioned shall be offered for sale at said auction, and also agrees not to dispose of or sell any part of the property herein listed before said auction sale without first obtaining permission from party of the first part, and agrees that if any of said property is so sold, to pay to the party of the first part 7 per cent commission on selling price of same.
“Party of the first part agrees to turn over to party of the second part, proceeds of sale, less the above charges, as soon as cheeks clear, or not later than twelve days. Party of the first part agrees to give terms to purchasers of cattle at sales which shall be: Sums of $100.00 or under, cash. On sums over $100.00 purchaser may pay all cash, or pay one-third cash and the balance in 9 equal monthly payments. It is understood that the clerking of the sale and handling of the paper is to be done by The Seaboard Dairy Credit Corp.
“Witness the signature of the parties hereto.
“Seaboard Dairy Auctioneers “W. Feinstein.”
Following the execution of this agreement the defendant Feinstein indorsed on the agreement the following (omitting date): “I hereby authorize Seaboard Dairy Credit (Corporation) to pay to Kooyman and Connors the sum of $2800.00 from my auction sale described on other side of this contract. W. Feinstein.”

The record then shows that the manager of the corporation testified that the $2,800 was paid by the Seaboard Dairy Credit Corporation to either Kooyman or Connors. The manager of the Seaboard Dairy Credit Corporation testified further that he made no investigation as to the title of the cattle sold at the auction sale. While testifying that the sale was held at the ranch referred to as belonging to the plaintiff, he did not know who owned the ranch. The record further shows that an employee of the Seaboard Dairy Credit Corporation acted as clerk at the sale.

In relation to the agreement which we have just set out, we quote the following testimony given by Mr. Harden, to wit: “Q. I mean leading up to your auction sale held on or about February 2, 1930, or immediately preceding that auction sale, did you have any business dealings with Mr. Feinstein? A. Mr. Feinstein, Mr. Prinz and Mr. J. Kooyman came into the office, and Mr. Feinstein had purchased from Mr. Prinz so many head of dairy cattle—I forget the exact number—and Mr. Feinstein asked if our auctioneers that were working with us would handle the sale, and said he was going to sell the cows, and wanted us, if there should be any paper, to handle that paper in the sale.” We think this testimony sufficiently shows the participation of the appellant in the execution of the agreement which we have set out, whether the agreement was arranged by Mr. Harden or by the auctioneers.

Mr. Harden further testified that the contract for the auction sale was executed by the auctioneers and Feinstein in his office; that the auctioneers worked on a commission basis.

Plaintiff’s exhibit No. 7 shows a sale of the cattle to the value of $7,547, and in making settlement with Feinstein there was deducted from this sale cattle bid in by Feinstein of the value of $2,275, leaving the sum of $5,272, upon which commissions were calculated at the rate of seven per cent interest, amounting to the sum of $369.04. Of this sum $50.70 was deducted on account of advertising and telephone expenses, leaving $318.34, of which the auctioneers received the sum of $159.17 and the Seaboard Dairy Credit Corporation a like sum of $159.17.

In the face of what we have recited the objection that the court erred in allowing the two auctioneers to testify that they were the agents of the corporation does not seem to us to be well taken, as the facts which we have stated are sufficient to show the active participation of the corporation in the auction sale, and its receipt of its share of the profits of the transaction.

Through the medium of a conversation had between Mr. Smith and Mr. Nunes, the president of the plaintiff corporation, the appellant sought in the trial court and also here seeks to establish the fact of consent on the part of the plaintiff, to the sale of the cattle, and also to establish an estoppel as against the plaintiff. The testimony is too lengthy to be set forth herein, but the following excerpt is sufficient to show the position taken by the appellant, and which, with other testimony to the same effect, sustains the finding of the court negativing the contention of the appellant. We quote from Mr. Nunes’ testimony as to the alleged conversation: “A. I remember while Mr. and Mrs. Smith were there he told me that those cows had been inspected by the State Inspector and they found quite a few T.B., and he wanted to get a permit from the company to dispose of those cows, those T.B.’s, and buy other cows to put in their place. I told Mr. Smith that I had no time to investigate anything, that I had to leave and I could not give him any permit whatsoever. Q. You told him that you would' not consent? A. Yes, sir. Q. Mr. Nunes, when did you first learn that there had been a sale, an auction sale on the ranch in question? A. Well, it was long after the sale, after the cows were sold, I don’t remember just when it was when I learned that the cows were not on the ranch and that they had disposed of the cows, they were gone, and I don’t know just when.” This witness further testified that he did not tell anyone that he knew of the auction sale prior to the sale. Mr. Smith’s testimony was to the effect that in a conversation with Mr. Nunes he told him of the impending auction sale. Nunes’ testimony as to his version of the conversation is corroborated by the testimony of another witness.

As to the question of estoppel we have searched the record from beginning to ending, and failed to find any testimony set forth therein to the effect that the appellant in this action was ever advised of the alleged conversation either as to the version given by Mr. Smith or the version thereof testified to by Mr. Nunes. Nor is there any testimony in the record to the effect that the appellant acted on any information as to whether the president of the plaintiff did or did not consent to the sale, or did or did not know of the sale. There is not a scintilla of evidence in the record that the action of the appellant was influenced in any particular by any act or word of any of the officers of the plaintiff.

As set forth by the respondent in its brief, in order to invoke the doctrine of estoppel it must be shown—First: That the party to be estopped was apprised of the facts; second: That the.party to be estopped must have intended that his conduct should be acted upon, and must have so acted that the party asserting the estoppel had a right to believe it was so intended; third: That the party invoking the estoppel was ignorant of the true state of facts; and, ■fourth: That the party invoking the estoppel must have relied upon the conduct of the other party to his injury.

In 21 C. J., page 1133, the basis of an estoppel is thus set forth: “It is essential to an equitable estoppel that the person asserting the estoppel shall have done, or omitted some act, or changed his position in reliance upon the representations or conduct of the person sought to be estopped.” To the same effect is the language of the court in the case of Gejanick v. Gregory, 116 Cal. App. 622 [3 Pac. (2d) 389], where a number of authorities are cited supporting the rules which we have just set forth. (See, also, 10 Cal. Jur., pp. 630-639.)

Without further elaboration it must be held that the appellant’s contention that the plaintiff consented to the sale is not well taken, and likewise, that there is no merit in the argument that the plaintiff is in anywise estopped.

In view of the facts which we have recited, and the lack of any testimony in the record showing that the appellant acted upon any word or conduct of the officers of the plaintiff, it is unnecessary to review and show the inapplicability of the cases where the doctrine of estoppel has been invoked, as in all those cases the facts set forth show that the party in whose favor the doctrine was upheld, acted upon representations and conduct of the adverse party.

The foregoing facts, gleaned from the record, show that the appellant exercised dominion and control over the property, and made sale thereof without the consent of the owner. This amounts to conversion. “A sale of personal property to another is an actionable conversion where it is wrongful or unauthorized by law, or without the consent of the owner and in defiance of his rights.” (35 C. J., p. 38.) “This rule has been applied to sales by commission merchants and auctioneers.” (24 Cal. Jur., p. 1026.)

In Mier v. Southern California Ice Co., 36 Cal. App. 512 [206 Pac. 83], the opinion states the rule in this language: “Any act of ownership or exercise of dominion over the property of another in defiance of his rights is a conversion of the property.” And further: “And the general rule is that one who sells the property of another, even though he believes he has a right so to do, is liable in trover to the true owner.” (Citing Swim v. Wilson, 90 Cal. 126 [27 Pac. 33, 25 Am. St. Rep. 110, 13 L. R. A. 605; Clark v. Whiteus, 69 Okl. 318 [171 Pac. 746]; 28.Am. & Eng. Ency. of Law, 2d ed., 702.)

The rules above stated as to what constitutes conversion have been the settled' law of this state since the decision in the case of Swim v. Wilson, supra. In that ease a broker sold stock in good faith, thinking it belonged to the person who tendered it for sale. The person who brought the stock to the broker for sale appears to have stolen the same. It was held that the broker was liable to the true owner.

No issue is tendered as to the value of the cattle, or as to the fact that the conditional contract of sale reserved ownership in the plaintiff.

It is finally contended that the testimony does not support the finding that the appellant sold cattle belonging to the plaintiff. Our attention has been called to the testimony of several witnesses pertaining to this subject. However, only a few excerpts need be taken therefrom to show that the finding of the trial court as to the identity of the cattle sold is amply supported.

The testimony of Peter Kooyman, one of the parties to the original contract, is to the effect that he was on the ranch where the cattle were kept, on the thirty-first day of January, 1930, just three days before the sale; that the cattle there were the same cattle that were on the ranch which he bought from the plaintiff, and the same cattle that were assigned by the Kooymans to Smith. This witness testified that he milked the cattle every day for a period of twenty-two months. The testimony of this witness shows that the cattle were mostly Holsteins; that there had been some replacements in the herd of cattle. This witness further testified as follows: “After my brothers and I sold, and after I assigned the contract to the Smiths, I continued to live on the ranch.” After testifying as to there being 127 head of milk cows the following question was put to this witness: “Now, the question is, were those 127 head of milk cows a part of the herd that was on the ranch when you and your brother took it from the Lusitanian-American Development Company, a corporation? A. Yes.”

The testimony of Mr. Feinstein shows that he bought the cattle on the ranch identified by the witness Kooyman. Feinstein testified as follows: “I bought them on the 27th day of January, 1930, and I left them at the ranch until the 3rd day of February, when I sold then at auction. From the 27th day of-January, to the 3rd day of February, I made visits to the ranch to see the cattle.” There is further testimony corroborative of what we have just set forth, which shows that the identity of the cattle sold at public auction was sufficiently established as being the cattle belonging to the plaintiff herein.

The judgment is affirmed.

Waste, C. J., Shenk, J., Langdon, J., Curtis, J., and Preston, J., concurred.


author: WASTE, C. J.

text:
    [L. A. No. 14396.
    In Bank.
    June 22, 1934.]
    In the Matter of the Estate of WILLIAM J. PUETT, Deceased. LILLIAN M. WILSON, Appellant, v. U. T. CLOTFELTER, as Executor, etc., Respondent.

      Chase, Barnes & Chase for Appellant.
    Richard Hartley for Respondent.
   WASTE, C. J.

William J. Puett died testate on January 13, 1932. At the time of his death he was the owner of an apartment in an “own-your-own” or commonly designated “community” apartment house. Through the medium of an holographic will, of which the respondent is the duly appointed and acting executor, the testator made several specific bequests and, in addition, disposed of the residuum of his estate to designated persons. Among the objects of his bounty is the appellant, a sister of his predeceased wife. The fifteenth paragraph of his will reads as follows: “To provide a furnished home for Lillian M. Wilson [appellant] of Elizabeth, New Jersey, I give and bequeath to her all my right, title and interest in the 'Mira Monte Terrace’, a corporation, my certificate of membership therein Number nine (9) Apartment ‘R’, in the building owned by that Company and all the personal property in said apartment ,'R’.”

The present controversy centers about the interpretation to be given to the italicized portion of the foregoing provision. However, before proceeding to a discussion of the issue, it should be stated that during the course of probate the respondent executor petitioned for and procured an order of ratable distribution, under which order, as amended nunc pro tunc, provision was made, in accordance with the terms of the will, for the distribution to appellant of apartment “R” and “all the personal property in said apartment R”.

Contending that the phrase “all the personal property in said apartment R” should be so construed as to include a tin box containing two promissory notes, aggregating $5,500, and a stamp and coin collection usually kept in the apartment during the testator’s lifetime, the appellant petitioned the probate court for and procured an order directing the respondent executor to show cause why he should not turn over said personal property to appellant. Upon return to and after hearing had on the order to show cause, the probate court, in accordance with the contention of the respondent executor, concluded, in effect, that the testator’s intent as disclosed by the opening phrase of the particular bequest here involved, to wit, “to provide a furnished home for” the appellant, suggested and required a construction of the closing and italicized phrase of the bequest limiting the same to “furnishings” found in the apartment at the time of the testator’s demise. Such a construction, of necessity, excludes from the operation of the bequest the tin box and the notes therein contained and the stamp and coin collection. We are satisfied from a reading of the particular bequest here involved that it was the testator’s desire and intention, as evidenced by the language employed, to provide the appellant with “a furnished home” and that in view of this clearly expressed intention the concluding language of the bequest should be so interpreted as to cover only the furnishings and bric-a-brac incidental to the maintenance of the apartment. Such a construction is consistent with and does no violence to the testator’s expressed intention. It is generally recognized that a testamentary instrument is to be examined with a view to discovering the decedent’s testamentary scheme or general intention, and that the apparent meaning of particular words, phrases and provisions is to be subordinated to this scheme, plan or dominant purpose. The technical import of words should not prevail over the obvious intent of the testator. In Estate of Koch, 8 Cal. App. 90 [96 Pac. 100, 101], a bequest covering, in part, “all my belongings” was held not to include money in view of the apparent intent of the testatrix to dispose of furniture, clothes, pictures, jewelry and things, which she ordinarily used for her personal comfort.

In Andrews v. Schoppe, 84 Me. 170 [24 Atl. 805], where the will disposed of certain enumerated household articles, furniture, beds and “all other articles of personal property”, it was held that the latter words must be read and construed in connection with the words preceding them, ' and that, when so read and construed, the words did not include promissory notes found among the effects of the decedent.

It was held in Tollman v. Tollman, 3 Misc. 465 [23 N. Y. Supp. 734], that, in view of other bequests in a will, a bequest of “all my personal property” referred only to household effects.

In Bills v. Putnam, 64 N. H. 554 [15 Atl. 138], where a bequest was made to two daughters of all the decedent’s “wearing apparel, household furniture and personal property of every name, nature and description”, it was held that the words “personal property” were used in their re-, stricted sense and did not include everything except real property.

We fully appreciate that the interpretation to be given a particular testamentary instrument must turn upon the language peculiar thereto and that decisions passing upon instruments of varying terminology can be of little assistance other than to announce the rules of construction. The cited authorities are of present value in that they indicate the propriety of applying to the phrase “all the personal property” a limited and restricted meaning and operation consistent with the testator’s evident intention.

However, even if we concede, without deciding, that the quoted phrase is sufficiently comprehensive to include personal property other than furnishings and other things common to a household, the result would be the same. The testator very definitely limited the bequest to the appellant to personal property “in said apartment R”. There is no evidence in the record indicating that either the promissory notes or the stamp and coin collection were in the apartment at the testator’s death, the time whereof his will speaks. The executor testified that “a number of months before Mr. Puett’s last illness he told me that he had a tin box and some things in it, and took me up to the apartment and showed me the box and where he kept it . . . then he said to me, ‘In case I ever become seriously ill or have to be removed to a hospital, I want you to promise me that you will get this box, take it out of the apartment and keep it in some safe place for me’ that the testator said, “he didn’t want it in the apartment house at the time he died under any circumstances”; that late in December, 1931, a few weeks prior to the testator’s demise, and when he was about to be taken from the apart ment to a hospital, he said to the witness, “don’t forget that box when you leave here. I think this is the last”; that the witness thereupon, and at the testator’s request, removed the box and its contents from the apartment, and that at the time of the testator’s death they were in a safe in the office of the witness.

As to the stamp and coin collection the respondent executor testified that it never had been in his possession; that he had seen it but once, on an occasion subsequent to the testator’s demise; that it was then in the possession of the testator’s former housekeeper, who brought it to his office and presented satisfactory proof that it did not belong to the estate, but had been “given [to] her by Mr. Puett long before he died”.

While there are some conflicts in the evidence, the foregoing is amply sufficient to support the lower court’s finding that the promissory notes and stamp and coin collection were not included in the bequest to appellant because they were not “in said apartment” at the time of the testator’s demise. This, together with the reason first above mentioned, viz., that the words “personal property”, appearing in the bequest, were used in a limited and restricted sense with the apparent intention of excluding said promissory notes and stamp and coin collection from the operation thereof, substantiates the lower court’s ruling.

We have examined appellant’s contentions and the authorities cited in support thereof. They do not suggest a different conclusion. We are not inclined to follow the several authorities cited' from other jurisdictions to which appellant refers us in support of the proposition that the will speaks from the date of its execution in so far as the properties to pass thereunder are concerned. The cases are distinguishable and each turned on its own peculiar facts. Here, the place of location of the bequeathed property, designated in the will as “in said apartment R”, was not merely descriptive but, in our opinion, constituted a limitation on the property to pass at the time of the testator’s demise. It was within the testator’s power to remove any portion of his property from the apartment and: thus preclude it from passing under the particular bequest here involved. Such removal does not, as appellant urges, constitute the making of an oral will.

For either or both of the above reasons the order or “judgment” appealed from is affirmed.

Shenk, J., Langdon, J., Curtis, J., and Preston, J., concurred.


author: LANGDON, J.

text:
    [S. F. No. 14821.
    In Bank.
    June 22, 1934.]
    ALBERT N. JOHNSON et al., Appellants, v. MABEL DeWITT EHRGOTT et al., Respondents.

      T. L. Christianson for Appellants.
    Robert B. Gaylord for Respondents.
   LANGDON, J.

This is an action for damages for fraud. Plaintiffs alleged that on January 18, 1927, they entered into an agreement with defendants to exchange an apartment house for a farm; that deeds were executed and delivered ; that certain representations made by defendants as to the character and quality of the land and the trees growing thereon were false, and knowingly made; that they were relied upon by plaintiffs, and that plaintiffs were damaged. The action was filed November 28, 1930. In order to avoid the bar of the statute of limitations, plaintiffs alleged that they did not themselves work on the land during 1927, but had it cultivated by contract during that year, and did not discover the fraud until some time in 192'8, within three years before the commencement of the action.

The complaint, as above described,- is the tenth amended complaint. Each of plaintiffs’ prior complaints was successfully attacked by general and special demurrers. The trial court in each case permitted plaintiffs to amend, until, at the time the ninth amended complaint was held insufficient, the court declared that it would permit but one more pleading. This, -the tenth, was demurred to and the demurrer sustained without leave to amend. Judgment thereupon was given for defendants and plaintiffs appealed.

We may assume the sufficiency of the meager specifications of fraud, for the determinative point is the statute of limitations. The action for fraud and deceit must be commenced within three years after the discovery of the fraud, and if the plaintiff does not discover it when it is perpetrated, he must set forth the circumstances to excuse the late discovery. The court must determine from the allegations whether the delay was excusable or was caused by lack of diligence on the part of the plaintiffs. (Lady Wash ington C. Co. v. Wood, 113 Cal. 482 [45 Pac. 809]; Security Com. etc. Bank v. Seitz, 43 Cal. App. 353 [185 Pac. 188].)

The complaint wholly fails to .meet this test. It declares that plaintiffs did not cultivate the land in 1927, and that the parties who did failed .to inform them of the condition. This is certainly not a showing of diligence. It does not explain the failure of plaintiffs to inspect their own property, and, indeed, the complaint is silent on the question whether the plaintiffs did inspect it, or whether they made any inquiry at all, and if not, why they did not.

The trial court, after giving plaintiffs repeated opportunity to plead circumstances sufficient to avoid the bar of the statute, finally concluded that there were no such circumstances, and refused to permit further amendments. The court’s action was proper; there must be a limit to the number of amended complaints. (See Davis v. Hibernia S. & L. Soc., 21 Cal. App. 444 [132 Pac. 462].)

The judgment is affirmed.

Preston, J., Curtis, J., Shenk, J., and Waste, C. J., concurred.


author: CURTIS, J.

text:
    [L. A. No. 14813.
    In Bank.
    June 25, 1934.]
    LESLIE S. BOWDEN, Petitioner, v. W. M. KERR, as Registrar, etc., Respondent, and LYNDEN BOWRING et al., Interveners.

      Leslie S. Bowden, in pro. per., W. L. Pollard and S. L. Kurland, for Petitioner.
    Clifford P. Gowa, as Amicus Curiae on Behalf of Petitioner.
    Everett W. Mattoon, County Counsel, and Fred M. Cross, Deputy County Counsel, for Respondent.
    Linden Bowring, Ida May Adams, Arthur E. Briggs, Troy Pace, Rush and Beirne, Bernard Potter, Welborn Mayock and Chas. B. MacCoy, as Amici Curiae on Behalf of Respondent.
   CURTIS, J.

Petition for writ of mandate against the Registrar of Voters of the County of Los Angeles, directing said officer to strike from the files of his office the names of twenty-seven persons, each of whom has filed in the office of said registrar his or her declaration of intention to become a candidate for the office of superior judge in and for said county, and to restrain said registrar from placing the names of said persons on the official primary ballot as candidates for the office of superior judge at the coming August primary election to be held in said county. Each of said declarations of intention was filed in the office of said registrar on the twenty-sixth day of May, 1934. It is the contention of the petitioner that the last day on which such declarations could by law be filed was the twenty-fifth day of May, 1934, and that as said declarations of intention were filed one day too late, it is the duty of said registrar to strike the same from the files of his office.

In the county of Los Angeles two or more judges of the superior court are to be elected for the same term during the year 1934. By section 2 of chapter 316, Statutes of 1927, page 528 (Deéring’s Gen. Laws, 1931, Act 2274), it is provided that: “Bach candidate for judicial office for which two or more judges or justices are to be elected for the same term at the same election as herein provided, not more than ten days nor less than five days prior to the first day on which his nomination papers may be circulated and signed, shall file in the office in which his nomination papers are -required to be filed, a written and signed declaration of his intention to become a candidate for such office and shall state in such declaration for which of the said number-designated offices of courts of record he intends to become a candidate.”

By an examination of the primary law as now in force, we find that there is no express provision thereof fixing the first day on which the nomination papers of a candidate for a judicial office may be circulated and signed. However, section 5 of the General Primary Law (Stats. 1913, p. 1379), as amended in 1933 (Stats. 1933, p. 358; Deering’s Gen. Laws, 1931, Act 2256, Supp. 1933), provides for the filing by a candidate for public office of his declaration of candidacy and for the appointment by him of verification deputies to obtain signatures of sponsors to his nomination papers. The plain reading of this section of the primary law indicates that these verification deputies are to be appointed during the period within which the candidate may file his declaration of candidacy, but not before that period. If verification deputies are appointed on the first day the candidate can file his declaration of candidacy, it would be possible for a candidate to have his nomination papers circulated and signed on that day. Said section provides that said declaration of candidacy must be filed at least sixty days and not more than ninety days prior to the August primary election. It follows, therefore, from these provisions of this section of the primary law that the first day on which the nomination papers of a candidate for office, to be voted for at the August primary election may be circulated and signed would be ninety days before the date of said primary election. The primary election this year falls on the twenty-eighth day of August, and ninety days prior thereto would be May 30, 1934, as the first day on which the nomination papers of a candidate may be circulated and signed. As we have seen by section 2 of the primary law (Stats. 1927, p. 528), a candidate for the office of superior judge of the county of Los Angeles must file his notice of intention to become a candidate for such office at least five days prior to the first day on which his nomination papers may be circulated and signed, and as the first day on which his nomination papers may be circulated is the thirtieth day of May, five days prior to that day would be May 25th as the last day on which said declaration of intention to become a candidate may be filed. As the candidates here involved did not file their declaration of intention until May 26th, their filing thereof was one day too late unless the fact that May 30, 1934, the earliest date on which the nomination papers of such candidates might be circulated and signed, fell upon a holiday compels a different result. While it is true, we think, that a nomination paper can be circulated and signed on a holiday, it cannot be circulated until after the appointment of a verification deputy, and a verification deputy cannot be appointed until the candidate can file his declaration of candidacy. This declaration of candidacy must be filed in the office of the Registrar of the County of Los Angeles, which office is not open for the transaction of business on a holiday. These candidates, therefore, could not file on May 30th. If they filed on May 29th, their filing would be premature, as the 29th would be ninety-one days before election. The earliest day, therefore, on which they could legally file would be May 31st, which would be the eighty-ninth day before said primary election, and as the statute requires the declaration of candidacy to be filed at least sixty and not more than ninety days prior to said day of election, they would be within the strict letter of the statute. As May 31st was the earliest day on which these candidates could file their declaration of candidacy and appoint their verification deputies, that date was the first day on which their nomination papers could be circulated and signed, (and five days prior thereto would be May 26th, as the last day on which they could file their declaration of intention to become candidates. As the declarations herein involved were filed within that time, it follows that they were timely filed and that the petition should be denied.

It is so ordered.

Preston, J., Langdon, J., Waste, C. J., Tyler, J., pro tern., and Shenk, J., concurred.

Rehearing denied.


author: THE COURT.

text:
    [L. A. No. 14545.
    In Bank.
    June 26, 1934.]
    W. W. HINDMAN, Plaintiff and Respondent, v. OWL DRUG COMPANY (a Corporation) et al., Defendants and Respondents; FLORENCE BROWN, Intervener and Appellant.
    Keyes & Erskine and John C. Mead for Appellant.

      Christopher M. Bradley and E. Eugene Davis for Plaintiff and Respondent.
    Chickering & Gregory, Gibson, Dunn & Crutcher and Norman S. Sterry for Defendants and Respondents.
   THE COURT.

Respondents move to dismiss the appeal of the intervener Florence Brown upon the grounds, first, that she no longer has any interest in the subject matter of the litigation, and, as to her, the questions involved in the appeal have become moot, and on the further (second) ground that she has failed to perfect the appeal within the time required by law.

Both grounds of the motion are good. The first has been considered and held to be a sufficient reason for dismissing the appeal in the opinion and decision this day rendered in Hindman v. Owl Drug Co. (L. A. No. 14375), (Cal.) 33 Pac. (2d) 1023.

It appears from the certificate of the clerk of the court in which the action was prosecuted that notice of appeal to the Supreme Court of the intervener, Florence Brown, was filed November 7, 1932. As to her, no further proceedings appear of record in the action.

The appeal is dismissed.

       Reporter's Note.—A rehearing was granted by the Supreme Court in the case of Hindman v. Owl Drug Co. (L. A. No. 14375) on July 26, 1934.


text:
    [L. A. No. 14023.
    In Bank.
    June 26, 1934.]
    GUY S. RILEY et al., Appellants, v. HOOPER C. DUNBAR et al., Defendants; G. B. MORRIS, Respondent.

      Geo. L. Hampton for Appellants.
    Neil S. McCarthy, Earl L. Banta and Howard P. Hall for Respondent.
   THE COURT.

This is an action to declare void certain certificates of interest in a trust, and to recover dividends paid thereon. A general demurrer was sustained to the complaint, and plaintiffs, electing to stand upon it, permitted judgment to go against them and brought this appeal. The question is whether the complaint states a cause of action, and involved in this is the question whether the right of action is barred by the statute of limitations, this defense having also been raised by demurrer.

The complaint alleges that Bellview Oil Syndicate is an unincorporated association, formed by a declaration of trust dated January 20, 1922; that its trustees at all times mentioned in the complaint were defendant Dunbar, C. C. Horton and defendant Morris; that a permit was issued by the corporation commissioner on January 30, 1922, to sell certificates of beneficial interests under the declaration of trust; that the permit authorized sale of certificates at $100 each, for cash, and not more than $5,000 aggregate par value to any person or company; that in April, 1922, defendant Morris offered to purchase 150 units for $12,000, at a discount of 20 per cent, together with a bonus of 37 units, and upon condition that he be made a trustee and be allotted other units; that this offer was accepted, and 150 units were issued, but only 50 were taken in the name of defendant Morris, and the other 100 were taken in the names of two persons as dummies; that this was knowingly done by defendant Morris for the purpose of evading the provisions of the permit; that the interests thus issued were void, and that Morris and his dummies did not become unit holders of the trust; that Morris and his assignees received as dividends on these units the sum of $55,000. It is further alleged that plaintiffs are holders of certificates of interest in the trust; that they have been unable to secure redress of these wrongs from the trustees; that a demand upon the trustees to sue on behalf of the trust would be useless because of their participation in the wrongful acts; and that plaintiffs sue on behalf of the trust and all unit holders thereof who may come into the action.

Whether these allegations state a cause of action need not be determined, for the complaint shows on its face that the statute of limitations has run. The complaint is dated June 6, 1932, ten years after the acts complained of. If the complaint is based upon fraud, no pleading to excuse late discovery of the facts is made. If it is based upon breach or repudiation of trust, this took place at the time the fraudulent acts were first committed. Plaintiff’s brief offers us no tenable theory upon which the bar of the statute may be avoided.

The judgment is affirmed.


text:
    [L. A. No. 14653.
    In Bank.
    June 26, 1934.]
    COUNTY OF SAN DIEGO (a Political Subdivision of the State of California), Appellant, v. A. LEAMAN DAVIS, Respondent.

      Thomas Whelan, District Attorney, and Edward W. Goodman, Deputy District Attorney, for Appellant.
    Hillyer & Boldman for Respondent.
   THE COURT.

This action is brought to collect a property tax on an automobile from the person shown by the records of the California motor vehicle department to be the “legal owner”. The lower court sustained a general demurrer to plaintiff’s complaint, and judgment for defendant was entered accordingly.

Prior to March, 1933, a dealer sold the automobile to a buyer under a conditional sale contract, and in accordance with the provisions of the California Vehicle Act (Deering’s Gen. Laws, 1931, Act 5128), the dealer was noted as the “legal owner”, and the purchaser as the “registered owner”. The dealer assigned the contract to defendant, a finance company, and defendant was then noted as the legal owner. The buyer at all times subsequent to the sale had possession and control of the property. On the first Monday in March, 1933, the car was assessed for taxes in the sum of $22.15, the assessment being against the “owner” of the car. The single question before us is whether the legal owner or the registered owner is the party liable for such tax. Plaintiff county contends that the assessor may, in his discretion, impose the liability upon either party, and that his choice of the legal owner, rather than the registered owner, cannot be attacked as double taxation in spite of the fact that- the conditional seller is subjected to a tax on the “solvent credit” represented by his contract.

The trial court determined that the registered owner was the party liable for the tax, and that the legal owner was not liable. This holding follows the established practice throughout the state, and is both sound and practical. The imposition of personal liability for the tax on finance companies which have no use or control over the car, instead of on the party having the beneficial use,- finds no justification in the statutes. The tax must be levied on the owner of the property, but this does not necessarily mean the holder of the legal title. In a conditional sale, the title in the seller is for security only, to assure the payment of the purchase price. It carries with it none of the ordinary incidents of ownership. The buyer has the possession and use of the property to the complete exclusion of the seller, subject only to the seller’s remedies in case of default. Both in a practical and a legal sense the buyer is the beneficial owner. (See Walker v. Houston, 215 Cal. 742 [12 Pac. (2d) 952, 87 A. L. R. 937].)

The precise question at issue in this case was before the Alabama court in Ex parte State, 206 Ala. 575 [90 So. 896], The court there said: “ . . . when a statute requires that property be assessed to the owner, we think it means the general and beneficial owner—that is, the person whose interest is primarily one of possession and enjoyment in the contemplation of an ultimate absolute ownership— and not the person whose interest is primarily in the enforcement of a collateral pecuniary claim, and does not contemplate the use or enjoyment of the property as such.”

The judgment is affirmed.


text:
    [Sac. No. 4873.
    In Bank.
    June 26, 1934.]
    F. W. SANDELIN, Plaintiff and Appellant, v. R. E. COLLINS et al., Defendants and Appellants.

      Taft & Spurr for Plaintiff and Appellant.
    H. L. Preston for Defendants and Appellants.
   SHENK, J.

Both parties appeal from a judgment in a proceeding for declaratory relief under sections 1060 et seq. of the Code of Civil Procedure. The facts are undisputed.

The plaintiff is operating the Palace Hotel in the city of Ubiah, county of Mendocino. The hotel is a three-story brick and concrete structure, one hundred feet by two hundred feet in dimensions. Within the building is a dining-room wherein the plaintiff conducts a public eating place, in which customers of the plaintiff are served with meals and with wines or beer under an “on sale” license from the defendant State Board of Equalization. In the same building and on the same floor with the dining-room is a retail liquor store operated by the plaintiff, wherein liquor is sold in original packages under an “off sale” license from the defendant. This liquor store has an entrance on West Smith Street, which is not the hotel entrance, and is separated from the dining-room by substantial partitions. The liquor store is patronized generally by the local and traveling public. Customers come to the dining-room bringing with them original packages containing intoxicating liquor (other than wine or beer) and open and consume the same while seated at the plaintiff’s tables. Customers also frequent the dining-room and request the plaintiff or his employees to go to said liquor store, purchase liquor (other than wine or beer), and serve the same to them at the dining-room tables of the plaintiff. Other customers of the plaintiff come to the dining-room “and order a sandwich and a glass of beer or wine, or both, consume the beer or wine, or both, and leave the sandwich untouched”. Customers also come to the dining-room, order a sandwich and a glass of beer or wine and consume both the sandwich and the beer or wine. The plaintiff desires to partition off a space in the dining-room twelve by fourteen feet in dimensions, with a service window opening into said dining-room, through which he may furnish liquor (other than wine or beer) to his customers in the dining-room, after which the employees of the plaintiff would take said liquor to a mixing counter, separate and apart from said liquor store, mix the same with other ingredients and serve it to said customers. A controversy has arisen between the plaintiff and the defendant board as to whether the use of said property as alleged and proposed is contrary to law, also as to whether the board has the right to designate persons to police the property of the plaintiff to prevent violations of law, and to prosecute offenders for such violations.

The board does not question the right of the plaintiff to serve wine and beer with regular meals in his dining-room, nor to sell liquors in his liquor store in original packages and not to be consumed on the premises where sold, and regulation with reference to the wholesale trade is not involved herein. The privileges which the plaintiff claims the right to exercise and which the defendants deny him are:

1. To permit patrons to bring into the dining-room liquor in original packages (other than wine or beer), and consume the contents thereof while occupying seats at the dining-room tables.

2. To permit his employees in the dining-room to go to the liquor store, at the request of patrons of the dining-room, and procure liquor, other than wine or beer, and serve the same to said patrons.

3. To partition off a space in the dining-room twelve by fourteen feet in dimensions, with a service window opening into the dining-room, through which he may furnish liquor, other than wine or beer, to his customers in the dining-room; after which the employee of the plaintiff would take said liquor to a mixing counter, apart from the space partitioned off, add other ingredients thereto and serve the same to customers in the dining-room.

4. To serve wine and beer in the dining-room to patrons who order and consume only a sandwich and such wine or beer.

5. To serve wine or beer in the dining-room to patrons who order only a sandwich and wine or beer, and consume only the latter.

6. To be relieved of the policing of his premises by the defendant board and its inspectors.

The trial court found and declared that the plaintiff had not the rights asserted in items 1, 2, 3 and 6 above enumerated, but had the privileges claimed in items 4 and 5.

Prior to the enactment of the eighteenth amendment to the Constitution of the United States the right of regulation of traffic in alcoholic liquors was exercised by the state or under the authority of the state by local legislative bodies and by local option. These rights of regulation were superseded by the federal law and the enactment of the State Prohibition Enforcement Act, commonly known as the Wright Act. (Stats. 1921, p. 79.) The Wright Act was repealed by an initiative measure approved at the general election held on November 8, 1932. At the same election, also as an initiative measure (designated on the ballot as proposition No. 2), section 22 was added to article XX of the state Constitution. This section provides: “In the event of the repeal of the State Prohibition Enforcement law commonly known as the Wright Act, and if and when it shall become lawful under the Constitution and laws of the United States to manufacture, sell, purchase, possess or transport intoxicating liquor for beverage purposes within the United States, the state of California, subject to the internal revenue laws of the United States, shall have the exclusive right and power to control, license and regulate the manufacture, sale, purchase, possession, transportation and disposition of intoxicating liquor within • the state, and, subject to the laws of the United States regulating commerce between foreign nations and among the states, shall have the exclusive right • and power to control and regulate the importation into and exportation from the state of intoxicating liquor; provided, however, no public saloon, public bar or bar room or other public drinking place where intoxicating liquors to be used for any purpose shall be kept, bought, sold, consumed or otherwise disposed of, shall ever be established, maintained or operated within the state; provided, further, subject to the above provisions, that in hotels, boarding houses, restaurants, cafes, cafeterias and other public eating places, wines and beer may be served and consumed with meals furnished in good faith to the guests and patrons thereof, and the legislature may authorize, subject to reasonable restrictions, the sale in retail stores of liquor contained in original packages, when such liquor is not to be consumed on the premises where sold.” (Stats. 1933, p. lxxx.)

In 1933 the legislature enacted the present state Liquor Control Act to become operative upon the repeal of the eighteenth amendment to the Constitution of the United States. (Stats. 1933, p. 1697.) The eighteenth amendment was repealed by the twenty-first amendment, effective December 5, 1933.

The State Liquor Control Act of 1933 appears to be a complete and comprehensive plan for the license, regulation and control of the traffic in intoxicating liquors in conformity with the constitutional provision now in effect. Among other things, the statute provides:

“Section 1. In hotels, boarding houses, restaurants, cafeterias, and other public eating places, wines and beer may be served and consumed with meals furnished in good faith to the guests and patrons thereof, subject to the provisions of the act and other applicable provisions of law.
“Section 2. Liquor contained' in original packages may be sold in retail stores where such liquor is not consumed and is not to be consumed on the premises where sold, subject to the provisions of this act, and other applicable provisions of law.
“Section 3. No public saloon, public bar or barroom or other public drinking place where intoxicating liquors to be used for any purpose shall be kept, bought, sold, consumed or otherwise disposed of shall ever be established, maintained or operated within this state.”

The act defines “liquor” or “intoxicating liquor” as “Beer, wine, gin, whiskey, cordials, or rum and every liquid or solid, patented or not, containing one-half of one per cent or more of alcohol by volume and which are fit for use for beverage purposes.” An “on sale license” is defined as “a license to sell beer or wine for consumption with meals only on the premises in respect to which the license is issued”. An “off sale license” is defined as a “license to sell liquor in original packages in retail stores for consumption only off the premises in respect to which the license is issued”.

The language of section 22 of article XX of the Constitution (proposition No. 2) is plain. Subject to certain federal laws, the state thereunder has the exclusive right and power to control, license and regulate the manufacture, sale, purchase, possession, transportation and disposition of intoxicating liquors within the state. Under the broad and comprehensive language preceding the provisos the state could prohibit entirely the manufacture and traffic in intoxicating liquor, subject, of course, to interstate commerce laws. Indeed, the state, independent of the constitutional provision, would have that right under the police power, and having the power to prohibit entirely could impose such conditions and regulations as it might deem proper. (Ex parte Christensen, 85 Cal. 208 [24 Pac. 747]; Matter of Application of Anixter, 166 Cal. 762 [138 Pac. 353].)

The provisos are included in the constitutional amendment. The effect of each is to place limitations on the power theretofore in the section vested in the law-making department of the state. The first proviso is one of prohibition against saloons and other public drinking places and the second is one of assurance against prohibition in specified particulars. The plaintiff’s hotel dining-room, operating under an “on sale” license, is unquestionably a public drinking place, as contemplated by the constitutional provision; and this is not questioned. The first proviso would prohibit entirely the maintenance and' operation of that dining-room if intoxicating liquor to be used for any purpose be kept, bought, sold, consumed or otherwise disposed of therein, if it were not for the second proviso which permits service and consumption of beer and wine only with regular meals. The first proviso strikes at the consumption, or disposition otherwise, of intoxicating liquor in said dining-room, and would operate as complete prohibition therein if it were not for the second proviso which permits and guarantees the right to the service and consumption therein of beer and wine with regular meals.

Applying the plain terms of the Constitution to the facts presented it must be declared:

1. That if the plaintiff should permit his patrons to bring into his dining-room liquor in original packages (other than wine or beer), and consume the contents thereof while occupying seats at the dining-room tables, he would be maintaining a public drinking place where such liquor is there consumed, in violation of the Constitution and the statute. (See Butler Hotel Co. v. United States, 35 Fed. (2d) 76; Id., 281 U. S. 733 [50 Sup. Ct. 248, 74 L. Ed. 1149]; Briggs v. United States, 45 Fed. (2d) 479; Rossi v. United States, 16 Fed. (2d) 712.)

2. That if the plaintiff should permit his employees in the dining-room to go to the retail liquor store, at the request of the patrons of the dining-room, and procure liquor, other than wine or beer, and serve the same to said patrons in the dining-room, he would be maintaining a public drinking place where such liquors are “consumed or otherwise disposed of”, in violation of the Constitution and the statute.

3. If the plaintiff should partition off a space in the dining-room, with a service window opening therefrom into the dining-room through which the plaintiff would furnish liquor, other than wine or beer, to his patrons, and thereafter permit his employees to mix said liquor with other ingredients and then serve the same to his patrons in the dining-room, he would be maintaining a public drinking place where such liquor is kept, sold or consumed, in violation of the Constitution and the statute.

In other words, under the plain terms of the Constitution, intoxicating liquors, other than wine and beer, may not under any circumstances lawfully be consumed in hotel dining-rooms or other public drinking places, in whatsoever manner said liquor may be supplied, and wine and beer may be consumed in the public places specified by the act only with meals. This conclusion is not arrived at by any process of construction or the ascertainment of the intention of the people of the state in enacting section 22 of article XX of the Constitution, but is compelled from the plain meaning of the words used. In such case there is no opportunity for construction; nor is there any function for the court to perform other than to apply to the facts the meaning which the constitutional provision plainly imports.

If construction of the language were required or justified, resort might well be had to the title of the initiative measure submitted to the electors of the state for their approval and prepared at the instance of the proponents thereof. The title states that the effect of the proposed constitutional amendment is as follows:

“Prohibits public saloons, bars or drinking places where intoxicating liquors are kept, sold or consumed.
“Permits serving wine and beer with meals furnished in good faith to patrons of hotels, boarding houses, restaurants, and public eating places.
“Permits legislation to authorize, under reasonable restrictions, sale of liquor in original packages in retail stores when same not consumed therein.”

There is nothing in section 22 of article XX of the Constitution which would indicate that intoxicating liquor, other than wines and beer, might be served and consumed with meals. The contrary definitely appears. To hold that so-called “hard liquors” might be served and consumed with meals in public drinking places would be contrary to the plain terms of the Constitution which permit only wines and beer to be served with meals, and would seriously interfere with the regulation of the traffic in liquors as provided for in the Liquor Control Act.

To determine what shall constitute a meal as contemplated by the Constitution it is first noted that good faith is an element in the transaction. The State Liquor Control Act defines a meal as “that quantity of food of such nature as is ordinarily consumed by an individual at regular intervals for the purpose of sustenance” in the dining-rooms of hotels, boarding houses, restaurants, clubs, dining-cars, cafes, cafeterias, and other public eating places where meals are regularly served at tables.

The question now considered is whether a sandwich, consumed or unconsumed, when served with wine or beer, is a meal as contemplated by the Constitution and statute.

The question is one of fact. No light is thrown upon it by expert or other testimony or evidence in the record. If common knowledge be resorted to it may be said that to one who is accustomed to simple sustenance a sandwich with a beverage would constitute a meal. A sandwich may or may not be a meal within the meaning of the Constitution and the statute, depending on the circumstances. If it be served as a mere subterfuge for a meal, it is not such a meal. Under our modern system of living a sandwich served in good faith as a meal would constitute a meal as contemplated by law. (In re Cullinan, 93 App. Div. 427 [87 N. Y. Supp. 660].) Obviously, the court cannot lay down a general rule of law applicable in all cases with reference to a question so intimately connected with and controlled by individual tastes, conditions of diet and circumstances. If a sandwich is served in good faith as a meal the fact that it is not consumed would not as a matter of law classify it as lacking the essential characteristics of a meal. It may therefore be said generally that the question whether the food served with wine or beer is a “meal furnished in good faith” is primarily a question of fact to be determined as a problem in enforcement, having in mind the limitations of the Constitution and the definition of a meal in the statute.

To recapitulate: The Constitution and the Liquor Control Act provide that intoxicating liquors of all kinds may be sold by duly licensed retail dealers to the public generally, but only in original packages and when such liquor is not to be consumed on the premises where sold. The Constitution and the statute prohibit the maintenance or operation within this state of any public drinking place where intoxicating liquors of any bind shall be kept, bought, sold, consumed or otherwise disposed of, except that wine and beer may, under appropriate licenses, be served and consumed with meals furnished in good faith in the dining-rooms of hotels, boarding houses, restaurants, cafes, cafeterias and other public eating places, to the guests and patrons thereof. Whether the food furnished with wine or beer or both, in such public eating places, constitutes a “meal” furnished in good faith is a question of fact to be determined in the enforcement of the act.

Lastly, the plaintiff asserts the right to operate his dining-room under the “on sale” license freed from policing on the part of the inspectors of the defendant board. Under section 5 of the State Liquor Control Act the board is “directed to administer and enforce the provisions of the act. For this purpose the board may employ . . . such additional inspectors and clerks as may be determined . . . to be necessary to the efficient administration and enforcement of the provisions of the act. The members of the board and the inspectors employed under the provisions of this act shall have all the powers of peace officers in enforcing the provisions of the act.” A violation of any of the provisions of the act or of any order, rule or regulation of the board, or of any of the terms and conditions of a license issued by the board is made a misdemeanor. The board, under section 29, is directed to cause the prosecution by the proper authorities of those who violate the provisions of the act. The foregoing is ample authority for the board and its inspectors to investigate alleged or threatened violations of the law, a necessary element of which is the policing of the premises where such violations may be committed.

We are in accord with the conclusions of the trial court as expressed in the findings and judgment herein.

The judgment is affirmed.

Waste, C. J., Curtis, J., Langdon, J., and Tyler, J., pro fern., concurred.


text:
    [L. A. No. 14042.
    In Bank.
    June 28, 1934.]
    LOUIS H. SMITH et al., Respondents, v. PAUL SCHUTTPELZ et al., Defendants, and FIRST NATIONAL BANK OF EAST SAN GABRIEL (a National Banking Association), Appellant.

      Michael G. Luddy for Appellant.
    H. Sidney Laughlin for Respondents.
   WASTE, C. J.

This is an appeal by the defendant bank from a money judgment entered in favor of the plaintiffs in the sum of $3,575.63 and costs.

The complaint sounds in damages for fraud. In the first cause of action it is alleged, in substance, that plaintiffs entered into an agreement in writing under the terms of which they were to purchase certain real property from the defendant Schuttpelz who, upon completion of the stipulated payments, was to execute and deliver a good and sufficient deed thereto; that plaintiffs executed the contract and made payments thereunder in reliance upon certain representations made to them by the defendant Threlkeld and the defendant bank, alleged agents of Schuttpelz; that the defendant Threlkeld, as president of the defendant bank, represented that Schuttpelz was the owner of the property and it would not therefore be necessary to go through escrow or to have a title search; that in fact the defendant Schuttpelz did not have title to the property; that the property was owned by and the title thereto was in one Paris; that the only interest which defendant Schuttpelz had in the property was that of a vendee under a contract of purchase entered into with Paris; that the defendant Threlkeld at the time of making the representations above set forth had actual knowledge of the condition of the title to the property; that in reliance upon such representations the plaintiffs executed the written agreement, entered into possession of the prop-. erty, erected improvements thereon, and completed their payments under the agreement, which payments were made at the defendant bank; that defendant Schuttpelz was unable and failed to transfer title as agreed; and that plaintiffs thereupon duly rescinded the agreement.

A further cause of action for all material purposes is substantially the same, the plaintiffs being therein designated as the assignees of a contract procured under similar circumstances and covering a separate parcel of property. The defendant Schuttpelz defaulted.

At the conclusion of the trial the court below found in substantial compliance with the allegations of the complaint and gave judgment for the plaintiffs in the sum above mentioned. As already indicated, the bank alone has appealed, contending that the findings generally are without support in the evidence and, specifically, that if and when the defendant Threlkeld made the representations complained of he was speaking and acting in his individual capacity and not as an authorized officer and agent of the bank. It is also urged that the record is destitute of evidence tending to establish an agency relationship between the bank and Schuttpelz.

It would serve no useful purpose to review the evidence at length in an effort to point out wherein it supports the several findings of fact assailed by the appellant. Suffice it to say that there is substantial evidence in the record to support the findings material and essential to a recovery by the plaintiffs. The record is replete with evidence indicating that the nonappealing defendant Threlkeld had, contrary to the facts of which he had actual knowledge, represented to the plaintiffs and to their predecessor in interest under the contract referred to in the second cause of action that title to the respective parcels was in the defendant Schuttpelz and that it was not therefore. necessary to go through escrow or to have a title search. The findings that the defendant bank and Threlkeld were acting as the agents of Schuttpelz and that Threlkeld, when making the representations, was acting as an officer of the bank and not in his individual capacity, are equally substantiated by the record. There is evidence to the effect that the plaintiffs and their predecessor in interest first became interested in the respective properties through a real estate agent; that said real estate agent had been theretofore informed by Schuttpelz to negotiate any sale of the properties “through this [defendant] bank of his”; that the real estate agent thereupon referred plaintiffs and their predecessor in interest to the defendant bank to negotiate the purchases; that the respective contracts were prepared at the bank and submitted to the prospective purchasers by the defendant Threlkeld, president of the bank; that they were executed by plaintiffs and their predecessor in interest at the bank after the making of, and solely in reliance upon, Threlkeld’s representations; that payments under the contracts were made at the defendant bank; and that the defendant bank was compensated by Schuttpelz for the collection of such installment payments. Throughout their testimony the plaintiffs and their predecessor in interest declared that they relied upon the representations of the “bank” when they executed the contracts. This evidence, together with certain written communications, introduced in evidence, which passed between the purported purchasers and the bank as to future delivery of the deeds by Schuttpelz, definitely indicates that the defendant bank, speaking and acting through its president, the defendant Threlkeld, negotiated for the sale of these properties as the agent of the defaulting defendant Schuttpelz. Under the circumstances, plaintiffs and their predecessor in interest were warranted in accepting the bank as such agent. The relation of agency need not depend upon, express appointment and . acceptance thereo E, but it may be, and frequently is, implied from the words and conduct of the parties and the circumstances of the particular case.

The fact that plaintiffs and their predecessor in interest subsequently executed quitclaim deeds of their interest, if any, in the properties to the true owner, did not serve to deprive them of their right to recover damages for the fraud practiced upon them by the defendants. Prior to the execution of these quitclaim deeds the true owner had commenced actions to foreclose and declare forfeited certain prior contracts of purchase and to foreclose all rights of certain named defendants, among them being the plaintiffs herein and their predecessor in interest, in and to the properties here involved. To this action the plaintiffs and their predecessor in interest had no defense inasmuch as they claimed under the defaulted contracts being forfeited and foreclosed. In consideration for the execution and delivery of the quitclaim deeds, partial compensation was made for the improvements theretofore placed on the properties by plaintiffs and their predecessor in interest. Plaintiffs did not thereby lose their right to recover damages for the fraud of the defendants.

Contrary to the appellant’s contention, mathematical computation discloses that the court below in determining the amount of the judgment made due allowance for the reasonable rental value of the properties for the period of occupancy by the plaintiffs and their predecessor in interest, and also made due allowance for the sums received from the true owner for the improvements placed on the properties.

We find nothing in the record warranting a reversal.

The judgment is affirmed.

Curtis, J., Preston, J., Langdon, J., and Shenk, J., concurred.