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The only evidence in regard to the propo- ↑ defendant to sell this stock. McPhail was sition that the plaintiff then appointed Law- the exclusive and general agent of the derence as his own agent to obtain the money fendant. It had agreed to make no sales for him on the "myself" note and make pay- thereof save through his agency. In carrying ment of one-fourth of the price therewith is out his duties as agent it was necessary for the testimony of Lawrence, Harding, and him to have solicitors and salesmen to procure Lynch, together with the contents of the doc-| purchasers and make sales. He had appointuments aforesaid. Lawrence testified that ed Lawrence, Harding, and Lynch as such the plaintiff read the agreement of subscrip- salesmen, and had furnished them with a suption and the two notes, that he then explain-ply of the forms aforesaid, to enable them to ed to the plaintiff that it would be necessary carry out the plan in the manner here exfor him to pay one-fourth cash, that the bal-hibited. He must be deemed to have intendance could be taken in notes, which could ed they should do so, and to have authorized be carried by the company as long as he de- them to carry out the plan. These salesmen sired, provided he paid the interest, and that were the agents of the defendants for that he (Lawrence) would "renew his original first purpose. The legal results are, therefore, the payment note, if he so desired," referring to same as if the transaction had been carried the "myself" note for one-fourth, of the out directly between Domenigoni on the one price. His testimony as to his authorization side and the managing agent of the defendto act as agent for plaintiff consisted of the ant on the other, which was the same in effollowing questions and answers: fect as if it had been done by the defendant through the board of directors.

"Q. Did you tell him by what method you expected to raise the money on his 'myself' notes? A. I told him, in lieu of cash, it was necessary for us to discount all notes.

The permit authorized agreements of sale of the stock only upon the condition that onefourth of the price was paid in cash at the "Q. Did you tell him that you would have to time of its execution.. The written agreeact for him in cashing that note? A. I told himments made in this case did, in form, declare I would discount these notes."

Harding testified on this subject that all the details were explained to the plaintiff, and that he was told that if he wanted this stock:

"We could arrange it so that he would make a cash payment, and that would be upon making

this 'myself' note, which was different entirely from the note which was part of the application. Then his 'myself' note was supposed to cover the first payment, and be converted into cash through discount at a bank by Mr. Lawrence and myself.

"Q. Acting for whom? A. Acting for ourselves or for him. It was simply a case of getting him the money to make the first pay

ment."

The plaintiff testified that he gave the two notes for the entire purchase price of the stock, and that he paid nothing in cash at the time of either purchase. Immediately after the purchase on each occasion the two agents departed with all the papers, except the receipt. The "myself" notes of June 10 and July 10 were both sold on July 12, 1920, for their face values to the First National Bank at Hemet by Lawrence, and he thereafter in due course transmitted the money to McPhail, together with the subsequent agree ments and the other notes for the remainder of the price. The money obtained from the bank in Hemet was reported to the defendant's main office by McPhail or Lawrence, or both, as cash paid on the price of the stock sold on each occasion.

From the foregoing statement of the facts proven, it is plain that, the transactions in question were planned and executed in the endeavor to circumvent the statute and evade the requirements of the permit allowing the

that one-fourth should be paid in cash, but this provision was not fulfilled nor intended to be fulfilled. The cash was not paid. Instead, the plaintiff executed a note payable six months afterward to himself, indorsed it in blank, and delivered it to Lawrence, one of the defendant's agents engaged in negotiating the sale. The first payment, so far as Domenigoni, the payor, was concerned,

was not made in cash, and would not be made by him until the six months expired. The permit did not specify that the defendant could accept a note, instead of the cash payment, or that it would be allowed to do so, provided it could negotiate the note and procure the cash by that means. Yet the latter is precisely what was done. Domenigoni's note was accepted by defendant's agents, and it was not until a month later that the cash was obtained on it.

To say that Lawrence was appointed by Domenigoni as his own agent, to take his note to some bank and there obtain the cash, if he could, and then use it, for Domenigoni to pay for him the cash necessary to complete the transaction, would sanction a mere pretense of conformity to the statute and the permit. The transaction with Domenigoni was complete when the agents, after giving him a receipt for "cash $625," departed with his note for that sum due in six months, and no cash. There is no substantial evidence that he authorized Lawrence to cash the note for him, or that he ever supposed that to be the relation between them, even if so plain an evasion could be tolerated by the courts. The agreement of sale and the receipt each bears the signature "Harding & Lawrence, Special Agents," subscribed thereto. They were the active agents for the defendant, the

(209 P.)

seiler, in the matter. Neither of these agents | "myself" notes for the purpose of paying the was willing to testify that he undertook to first installment of the subscription agreeact also as the agent of the buyer, or that ment of the same date, and that defendant any suggestion to that effect was made to the received the sum of 25 per cent. of each inbuyer. When Lawrence was asked if he told stallment of such stock sold to plaintiff in Domenigoni that he would "have to act for cash. The court should have found that him in cashing that note," his answer was: when each stock sale was made the plaintiff "I told him I would discount these notes." agreed to execute notes for the full price, This was a plain evasion of the question, three-fourths of the purchase price by the and it shows that the statement embraced in notes payable to defendant and the other onethe question was not made. The statement fourth by the "myself" notes, and that said that he would "discount the notes" does not last-mentioned notes, though made to himself imply that he said he would do so for Domen- and indorsed in blank by him, were also de igoni, but, especially when made in answer livered to plaintiff through the medium of to such a question, clearly implies that he Mr. Lawrence, who was the defendant's made no such statement. Harding's testi-agent to receive them, and obtain the money mony does not go as far as that of Lawrence. on them, and not the agent of the plaintiff. His testimony that, in converting the "myself" note into cash to cover the first payment, he and Lawrence would be "acting for ourselves or for him," is entirely noncommittal, and scarcely rises to the dignity of a conclusion, much less a statement of fact.

The plain facts were that in each case Domenigoni made an agreement to subscribe for stock which upon its face stated that onefourth of the price was to be paid in cash, but in fact he gave his note, due six months thereafter, for the one-fourth, and another note for the balance, payable in installments at later dates, and the agents of the defendant thereafter sold the six-months notes and thereby obtained the cash wherewith and whereby the transaction might appear on the books of the defendant as a sale for one fourth cash. The agents accepted the sixmonths note on behalf of themselves as agents for the defendant, and the subsequent sale thereof by them was in legal effect a sale by defendant, whether its directors and managing officers were aware of the details of the transaction or not. Its general agent, McPhail, is charged with full knowledge of it, for he prepared the papers required for its execution. If such subterfuges were permitted, the statute would soon become a dead letter, and the object it was designed to accomplish would be frustrated by the very persons against whose practices it is directed.

Therefore the court below erred in its findings. As to each case the court found that the plaintiff delivered the "myself" note to W. B. Lawrence as his agent, that defendant received from Lawrence the amount of said "myself" note in cash at the time said note was so delivered to Lawrence, that the defendant did not agree with plaintiff that if plaintiff would purchase the stock he could give notes for the full amount of the purchase price thereof, that it is not true that the whole purchase price of said stock was paid in promissory notes of the plaintiff, and that plaintiff made said Lawrence his agent, and authorized him, as such, to cash the said

[2] But it does not follow that the plaintiff was entitled to any relief. The entire transaction was an attempt to circumvent the law. The notes and agreements were each of them made in violation thereof, and are therefore against the policy of the law, as he claims, and void. He was a party to them and is equally guilty with the defendant. In such a case the court will give no relief even if the point is not raised by either party. In Kreamer v. Earl, 91 Cal. at page 118, 27 Pac. at page 737, the court said:

never questioned the legality of the contract, "It may be suggested that the appellant has and that we ought not to make the point for him. * 串 * A court of equity will not allow itself to become a handmaid of iniquity of any kind. It intervenes, not for the sake of the party who is benefited by the intervention, but for the sake of the law itself. It matters not that no objection is made by either party; when the court discovers a fact which indicates that the contract is illegal and ought not to be enforced, it will, of its own motion, instigate an inquiry in relation thereto."

To the same effect, see Valentine v. Stewart, 15 Cal. 404; Abbe v. Marr, 14 Cal. 211; Davis v. Mitchell, 34 Cal. 89-90; Prost v. More, 40 Cal. 348; Bulson v. Moffat, 173 Cal. 686, 161 Pac. 259; Colby v. Title, etc., Co., 160 Cal. 640, 117 Pac. 913, 35 L. R. A. (N. S.) 813, Ann. Cas. 1913A, 515; Ripperdan v. Weldy, 149 Cal. 676, 87 Pac. 276; Los Angeles v. City Bank, 100 Cal. 24, 34 Pac. 510; McGregor v. Donnelly, 67 Cal. 149, 7 Pac. 422; 14 Cor. Jur. p. 492.

It follows that the court erred in its findings, and the judgment must be reversed, in order that proper findings may be entered; and the judgment should not carry costs in favor of the defendant. Each party should be left to pay his own costs. The judgment is reversed.

We concur: WASTE, J.; LENNON, J.; RICHARDS, Justice pro tem.; MYERS, Justice pro tem.

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of the third count is conclusive against the defendant. In People v. Mueller, 168 Cal. 521, 528, 143 Pac. 750, 751 (L. R. A. 1915B, 282) the court said:

"Wine is a well-known form of vinous liquor, and it is common knowledge that it contains alcohol. * Its character is so well known that the court takes judicial notice of these qualities, and also that it contains considerably more than 1 per cent. by volume of alcohol, that it is intoxicating when taken into the stomach and that it may be used as a beverage. Black on Intoxicating Liquors, § 5; 23 Cyc. 61. We are not aware of any case holding specifically that judicial notice will be taken of the fact that ordinary wine contains more than 1 per cent. of alcohol, but we do not doubt that it will."

[2] The verdict of the jury is as follows: "We the jury find the said defendant guilty as charged in the indictment." Section 954 of the Penal Code provides that "each offense upon which the defendant is convicted must be stated in the verdict." It is contended that "the jury in casting their votes could have reached the verdict as rendered

Appeal from Superior Court, Mendocino with a portion of the jury voting on count County; H. L. Preston, Judge.

Louis Cassella was convicted of violating the Wyllie Local Option Law, and he appeals. Affirmed.

M. H. Iversen, of Ukiah, for appellant.
U. S. Webb, Atty. Gen., and J. Charles
Jones, Deputy Atty. Gen., for the People.

FINCH, P. J. The defendant was convicted on two counts of selling alcoholic liquor and on one count of conducting a place where alcoholic liquor was sold, served, and distributed, and kept for the purpose of sale and distribution, all contrary to the provisions of the Wyllie Law (St. 1911, p. 599). He was sentenced to imprisonment for three months on each of counts 1 and 2, to run concurrently, and to pay a fine of $300 on the third count. The defendant appealed from the judgment, and from the order denying

his motion for a new trial.

A, reversal is asked on two grounds: (1) That the evidence is insufficient to show that the liquor sold or kept for sale contained one per cent. or more of alcohol; (2) that the verdict is void for uncertainty.

1, while another portion had in mind count 2 and still another portion of the members had in mind count 3," in other words, that the jurors may not all have agreed as to the defendant's guilt on any one count. The court gave the jury eight forms of verdict, among them the one rendered. The court instructed the jury as follows:

"The court has had prepared forms of verdicts one of which you will endeavor to find.

*

One verdict will read, 'We, the jury, find the defendant not guilty.' If you find three counts, your foreman will sign that verhe is not guilty of either or any of the dict and return into court. The next verdict, * * *. 'We, the jury, find the defendant guilty as charged in the indictment.' If you find the defendant guilty of all three counts, your foreman will sign that one and return into court. Another one reads, "We, the jury, find the said defendant guilty as charged in count in counts 2 and 3. Now in case you find the 1 of the indictment and not guilty as charged defendant guilty of the first count of the indictment, and not guilty in the last two counts, you will return that verdict."

In a similar manner the court instructed as to other possible verdicts. If the jurors [1] A witness for the prosecution testified, followed the plain instructions of the court, in support of the first count, that he pur- and it must be presumed that they did, then chased from the defendant "so-called wine" the verdict is not uncertain. It is not in at 20 cents a glass and "so-called jackass" literal compliance with the provisions of secat 35 cents a glass; that the liquor had a tion 954 of the Penal Code, but under the cirkick to it; that he could feel it; that "they cumstances disclosed the defendant could called it wine"-referring to the "so-called have suffered no prejudice therefrom. Had wine." In support of the second count the the jury expressly found the defendant "guilwitness testified that he purchased from the ty on all counts as charged in the indictdefendant two glasses of wine at 20 cents a ment," it would hardly be contended that glass. The testimony produced in support the verdict was uncertain, and, in effect, this

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

(209 P.)

is what the jury did. In Ballew v. United States, 160 U. S. 187, 16 Sup. Ct. 263, 40 L. Ed. 388, in considering a similar question, where the trial court had instructed the jury, "that, if they considered the defendant guilty on one count and innocent on the other, they should so find, and, if they found him guilty on both counts, that they should return a general verdict," and the jury had returned a general verdict of guilty, the court said:

“The verdict was a general verdict. That in a case such as this a general verdict is proper, and imports of necessity a conviction as to both crimes, is settled."

In view of the uncertainty apparently existing as to the correct form of verdict in such cases, it is deemed not improper to suggest that, where two or more offenses are charged, it would be a full compliance with the statute to furnish the jury a single form of verdict. In this case the following form would have been sufficient, with instructions to insert the words "guilty" or "not guilty' in the blank spaces in accordance with the finding of the jury on each count:

"We, the jury, find the defendant as charged in the first count of the indictment; we as charged in the second count; — as charged in the third

find him

and we find him count."

See State v. Blunt, 110 Mo. 322, 339, 19 S.

W. 650.

The judgment and order are affirmed.

We concur: BURNETT, J.; HART, J.

FAHEY v. MADDEN et al. (Civ. 2472.) (District Court of Appeal, Third District, Cali

fornia. July 17, 1922.)

I. Highways 184 (3)-Pedestrian, walking on left side of road and turning to left, held not guilty of contributory negligence as matter of law.

A pedestrian, walking on the left side of a highway and turning to the left in trying to avoid an automobile, which struck him, held not guilty of contributory negligence as a matter of law.

2. Highways175(1)-Rule of care as between pedestrian and automobilist stated.

An automobilist and a pedestrian must make reasonable use of all of their senses for the prevention of accidents, and exercise such reasonable caution as ordinarily careful and prudent persons would exercise under like circum

stances.

Action by T. H. Fahey against Winfield Madden, Robert Boen, and others. Judgment for plaintiff, and defendant Robert Boen appeals. Affirmed.

See, also, 206 Pac. 128.

Elmer W. Armfield and Arthur B. Eddy, both of Woodland, for appellant.

P. B. Lynch, of Vallejo, for respondent.
W. H. Morrissey, of San Francisco, and

ert Boen from a judgment in favor of plainBURNETT, J. This is an appeal by Robtiff, based upon the verdict of a jury for $8,000 against both defendants, allowed as damages for personal injuries. It was alleged in the complaint that Madden was the owner of a certain automobile and"that the said defendant Boen at the time of the accident herein complained of was driving said motor vehicle with the permission, consent, and approval of said defendant, Madden, and while so driving said motor vehicle on the 14th day of December, 1917, negligently and carelessly drove the said motor vehicle into and over the plaintiff, knocking him to the ground with great force and violence, breaking his leg, and bruising and injuring him to such an extent that it was necessary to amputate his right leg just above the knee, and plaintiff's leg was in fact by reason of said negligence and carelessness amputated just above the knee."

[1] The only contention of appellant is that his motion for nonsuit should have been granted, for the reason that the only rational conclusion' that could be drawn from the testimony for plaintiff is that he was chargeable with contributory negligence. As we view the record, the position is utterly untenable. The testimony of plaintiff is to the effect that, when the accident occurred, about 7 o'clock in the evening, he was walking in an easterly direction along the state highway just east of Fairfield, in Solano county. He was returning from Suisun to his work at Cement, and was traveling on the left-hand side of the road, about the width of an automobile off of the concrete pavement. When he first saw the automobile, it was traveling on said highway in a southerly direction, and was then about a mile away. The highway makes a right angle turn from the northerly and southerly direction to the easterly and westerly direc tion just before the point where the accident occurred, according to the testimony of Fahey, and the automobile had rounded this turn and had traveled about 25 or 30 feet, when it swerved to the north of the concrete part of the highway and collided with plaintiff, inflicting the very serious injuries that are described in the complaint. When plaintiff saw the imminence of the danger, in his

Appeal from Superior Court, Solano Coun- own language, he "made an effort to get over ty; W. T. O'Donnell, Judge.

there to the left, to get out of the way of

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the machine; it caught me before I could get would not leave the pavement, which was out of the way."

Appellant would have the court hold that contributory negligence should be imputed to plaintiff by reason of each of the two circumstances, that he was walking on the lefthand side of the road, instead of the right, and that he turned to the left, rather than the other direction, when he tried to avoid the machine. As to the former, there is no law and no established criterion of conduct that attributes negligence to one who walks on the left side of a highway. In Raymond v. Hill, 168 Cal. 482, 143 Pac. 747, it is said: "As to foot passengers, the old common-law freedom of use of the king's highway has not been modified in this state by any positive enactment; so that it still remains the law that foot passengers have the right to use and traverse the highway at all its points, being chargeable only for the exercise of a due amount of care, which due amount of care, in its quantum, is governed by the circumstances attending the use which the pedestrian actually makes. Thus in this state, even in populous streets of cities, pedestrians are not restricted to the crossings in traversing a street, but may cross it at any point. And the same is true of their right to walk along the road bed of a highway."

constructed for automobile traffic, and to which the operation of machines is ordinarily confined.

Neither can it be said that in turning to the left he was necessarily guilty of contributory negligence. In considering his conduct the excitement and confusion of the moment must be accorded due weight, and under such circumstances, if he made a mistake, the law would hardly hold it against him. Moreover, since he was walking away from the pavement, and might reasonably expect that the driver would attempt to keep his machine thereon, what more natural thing than for the pedestrian to try to get still further away when he found that the machine was bearing down upon him? Manifestly his position upon the highway must be regarded in determining what movement reasonable would require of him when it appeared to him that he was in danger of being run over. If he had been on the paved portion of the highway a different situation might have presented itself, but, under the circumstances, we think no court could hold that the only rational, conclusion is that he acted without due caution and circumspection.

care

We think the trial court was clearly right in denying the motion for a nonsuit, and the judgment is therefore affirmed.

We concur: FINCH, P. J.; HART, J.

EVANS et al. v. SHOCKLEY.
(Civ. 4137; S. F. 10001.)

(District Court of Appeal, First District, Di-
vision 1, California. July 3, 1922. Rehear-
ing Denied Aug. 2, 1922. Hearing Denied by
Supreme Court Aug. 31, 1922.)

1. Trade-marks and trade-names and unfair competition 23-Use of trade-name by one not true owner may be restrained.

[2] Of course, the general rule applies that the person having the management of the automobile and the traveler on foot are both required to use such reasonable care, circumspection, prudence, and discretion as the circumstances require, an increase of care being required where there is an increase of danger; "and both are bound to the reasonable use of all their senses for the prevention of accident, and the exercise of all such reasonable caution as ordinarily careful and prudent persons would exercise under like circumstances." 2 Elliott on Roads and Streets (2d Ed.) p. 667. But it cannot be said that plaintiff by traveling as he did failed to meet this requirement. Indeed, there is room for the opinion that "it is safer," in the language of respondent, "to walk along the highway on the side of the road facing the oncoming traffic rather than take the chance of walking on the opposite side and of being struck by unseen automobile from behind." It is further declared that the soldiers of the United States army, when not marching in formation, are required to walk on the side of the road facing the oncoming traffic. At any rate, for a pedestrian to walk on that side cannot be said as a matter of Moreover, it law to constitute negligence. is to be remembered that plaintiff testif that he was walking a machine's width from the paved highway. Assuredly, that could not be considered a place of danger, and he would not be chargeable with negligence in anticipating that oncoming machine Judge.

an

Under Pol. Code, § 3197, providing for the recording of a trade-name with secretary of state, and section 3199, providing that the one who has first adopted and used a tradename, whether within or without the state, is its original owner, the rights thus acquired are property rights, and may be protected from invasion by an injunction.

2. Trade-marks and trade-names and unfair competition 33-Trade-name may be transferred separately from the business.

Under Pol. Code, § 3199, providing for the transfer of trade-names, a trade-name may be lawfully transferred, so as to separate it from the business or commodity to which it pertains.

Appeal from Superior Court, City and County of San Francisco; E. P. Shortall,

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