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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 appoint. uments aforesaid. Lawrence testified thated 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 ex. for 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 "Q. Did you tell him by what method you

through the board of directors. expected to raise the money on his 'myself' |

The permit authorized agreements of sale notes? A. I told him, in lieu of cash, it was

of the stock only upon the condition that onenecessary for us to discount all notes.

| fourth 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 him ments made in this case did, in form, declare I would discount these notes."

that one-fourth should be paid in cash, but Harding testified on this subject that all

this provision was not fulfilled nor intended the details were explained to the plaintiff,

to be fulfilled. The cash was not paid. Inand that he was told that if he wanted this

stead, the plaintiff executed a note payable stock:

six months afterward to himself, indorsed it

in blank, and delivered it to Lawrence, one “We could arrange it so that he would make

ake of the defendant's agents engaged in nego a cash payment, and that would be upon making

tiating the sale. The first payment, so far this 'myself' note, which was different entirely from the note which was part of the applica

as Domenigoni, the payor, was concerned, tion. Then his ‘myself' note was supposed to

was not made in cash, and would not be cover the first payment, and be converted into made by him until the six months expired. cash through discount at a bank by Mr. Law The permit did not specify that the defendrence and myself,

ant could accept a note, instead of the cash "Q. Acting for whom? A. Acting for our payment, or that it would be allowed to do selves or for him. It was simply a case of

so, provided it could negotiate the note and getting him the money to make the first pay.

procure the cash by that means. Yet the ment."

latter is precisely what was done. Domeni. The plaintiff testified that he gave the two goni's note was accepted by defendant's notes for the entire purchase price of the agents, and it was not until a month later stock, and that he paid nothing in cash at that the cash was obtained on it. the time of either purchase. Immediately To say that Lawrence was appointed by after the purchase on each occasion the two Domenigoni as his own agent to take his agents departed with all the papers, except note to some bank and there obtain the cash, the receipt. The “myself” notes of June 10 if he could, and then use it, for Domenigoni and July 10 were both sold on July 12, 1920, to pay for him the cash necessary to complete for their face values to the First National the transaction, would sanction a mere preBank at Hemet by Lawrence, and he there. tense of conformity to the statute and the after in due course transmitted the money to permit. The transaction with Domenigoni was McPhail, together with the subsequent agree complete when the agents, after giving him a ments and the other notes for the remainder receipt for "cash $625," departed with his of the price. The money obtained from the note for that sum due in six months, and no bank in Hemet was reported to the defend- cash. There is no substantial evidence that ant's main office by McPhail or Lawrence, or he authorized Lawrence to cash the note for both, as cash paid on the price of the stock him, or that he ever supposed that to be the sold on each occasion.

relation between them, even if so plain an From the foregoing statement of the facts evasion could be tolerated by the courts. proven, it is plain that, the transactions in The agreement of sale and the receipt each question were planned and executed in the bears the signature "Harding & Lawrence, endeavor to circumvent the statute and evade Special Agents," subscribed thereto. They the requirements of the permit allowing the were the active agents for the defendant, the (209 P.) seller, 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 plaintifr "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 "my- [2] But it does not follow that the plaintiff self" note into cash to cover the first pay was entitled to any relief. The entire transment, he and Lawrence would be "acting for action was an attempt to circumvent the law. ourselves or for him," is entirely noncommit- The notes and agreements were each of tal, and scarcely rises to the dignity of a them made in violation thereof, and are conclusion, much less a statement of fact. therefore against the policy of the law, as

The plain facts were that in each case he claims, and void. He was a party to Domenigoni made an agreement to subscribe them and is equally guilty with the defendfor stock which upon its face stated that one ant. In such a case the court will give no fourth of the price was to be paid in cash, relief even if the point is not raised by eibut in fact he gave his note, due six months ther party. In Kreamer v. Earl, 91 Cal. at thereafter, for the one-fourth, and another page 118, 27 Pac. at page 737, the court said: note for the balance, payable in installments

"It may be suggested that the appellant has at later dates, and the agents of the defendant thereafter sold the six-months notes and

never questioned the legality of the contract,

and that we ought not to make the point for thereby obtained the cash wherewith and

him. * * * A court of equity will not allow whereby the transaction might appear on the itself to become a handmaid of iniquity of any books of the defendant as a sale for one kind. It intervenes, not for the sake of the fourth cash. The agents accepted the six-party who is benefited by the intervention, but months note on behalf of themselves as for the sake of the law itself. It matters not agents for the defendant, and the subse that no objection is made by either party; when quent sale thereof by them was in legal ef- the court discovers a fact which indicates that fect a sale by defendant, whether its direc- the contract is illegal and ought not to be tors and managing officers were aware of the enforced, it will, of its own motion, instigate details of the transaction or not. Its general | an inquiry in relation thereto." agent, McPhail, is charged with full knowledge of it, for he prepared the papers re- To the same effect, see Valentine v. Stewquired for its execution. If such subter- art, 15 Cal. 404; Abbe v. Marr, 14 Cal. 211; fuges were permitted, the statute would soon Davis V. Mitchell, 34 Cal. 89–90; Prost v. become a dead letter, and the object it was More, 40 Cal. 348; Bulson v. Moffat, 173 designed to accomplish would be frustrated Cal. 686, 161 Pac. 259; Colby v. Title, etc., by the very persons against whose practices Co., 160 Cal. 640, 117 Pac. 913, 35 L, R. A. it is directed.

(N. S.) 813, Ann. Cas. 1913A, 515; Ripperdan Therefore the court below erred in its v. Weldy, 149 Cal. 676, 87 Pac. 276; Los findings. As to each case the court found Angeles v. City Bank, 100 Cal. 24, 34 Pac. that the plaintiff delivered the "myself” note 510; McGregor v. Donnelly, 67 Cal. 149, 7 to W. B. Lawrence as his agent, that defend Pac. 422; 14 Cor. Jur. p. 492. ant received from Lawrence the amount of It follows that the court erred in its findsaid “myself" note in cash at the time said ings, and the judgment must be reversed, in note was so delivered to Lawrence, that the order that proper findings may be entered; defendant did not agree with plaintiff that and the judgment should not carry costs in if plaintiff would purchase the stock he could favor of the defendant. Each party should give notes for the full amount of the pur- be left to pay his own costs. chase price thereof, that it is not true that The judgment is reversed. the whole purchase price of said stock was paid in promissory notes of the plaintiff, and We concur: WASTE, J.; LENNON, J.; that plaintiff made said Lawrence his agent, RICHARDS, Justice pro tem.; MYERS, Jusand authorized him, as such, to cash the said | tice pro tem.

1 of the third count is conclusive against the PEOPLE v. CASSELLA. (Cr. 632.) defendant. In People v. Mueller, 168 Cal.

521, 528, 143 Pac. 750, 751 (L. R. A. 1915B, (District Court of Appeal. Third District, Cali

282) the court said: fornia. July 18, 1922. Hearing Denied by Supreme Court Sept. 14, 1922.)

"Wine is a well-known form of vinous liquor,

and it is common knowiedge that it contains 1. Intoxicating liquors en 236(13)-Evidence alcohol. • * * Its character is so well known

held to show that wine contained more than that the court takes judicial notice of these permitted percentage of alcohol.

qualities, and also that it contains considerably Evidence that witness bought wine from

more than 1 per cent. by volume of alcohol, that defendant which had a kick to it held sufficient

it is intoxicating when taken into the stomach to show that the liquid sold contained more

and that it may be used as a beverage. Black than 1 per cent. of alcohol, in violation of the

on Intoxicating Liquors, & 5; 23 Cyc. 61. We Wyllie Law.

are not aware of any case holding specifically

that judicial notice will be taken of the fact 2. Criminal law 1 175-Failure to state in that ordinary wine contains more than 1 per

verdict each offense on which defendant was cent. of alcohol, but we do not doubt that it convicted held not prejudicial.

will." Where defendant was prosecuted under three counts, and the court instructed the jury [2] The verdict of the jury is as follows: that, if they found defendant guilty under all “We the jury find the said defendant guilty three counts, to return a verdict of guilty as

as charged in the indictment." Section 954 charged, and they returned such a verdict, de

of the Penal Code provides that "each offendant was not prejudiced by a failure to literally comply with Pen. Code, $ 954, providing that

fense upon which the defendant is convicted each offense on which defendant is convicted

must be stated in the verdict.” It is conmust be stated in the verdict.

tended 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.

1, while another portion had in mind count

2 and still another portion of the members Louis Cassella was convicted of violating had in mind count 3," in other words, that the Wyllie Local Option Law, and he ap- the jurors may not all have agreed as to peals. Affirmed.

the defendant's guilt on any one count. The M. H. Iversen, of Ukiah, for appellant.

court gave the jury eight forms of verdict, U. S. Webb, Atty. Gen., and J. Charles among them the one rendered. The cou Jones, Deputy Atty. Gen., for the People.

structed the jury as follows:

"The court has had prepared forms of verFINCH, P. J. The defendant was convict-dicts one of which you will endeavor to find. ed on two counts of selling alcoholic liquor

* * * One verdict will read, “We, the jury, and on one count of conducting a place

find the defendant not guilty.' If you find

* * * he is not guilty of either or any of the where alcoholic liquor was sold, served, and

three counts, your foreman will sign that verdistributed, and kept for the purpose of sale diet and return into court. The next verdict, and distribution, all contrary to the provi- * * 'We, the jury, find the defendant guilty sions of the Wyllie Law (St. 1911, p. 599). as charged in the indictment.' If you find the He was sentenced to imprisonment for three defendant guilty of all three counts, your months on each of counts 1 and 2, to run con- foreman will sign that one and return into currently, and to pay a fine of $300 on the court. Another one reads, “We, the jury, find third count. The defendant appealed from

the said defendant guilty as charged in count the judgment, and from the order denying

1 of the indictment and not guilty as charged

in counts 2 and 3.' Now in case you find the his motion for a new trial.

defendant guilty of the first count of the indictA, reversal is asked on two grounds: (1)

ment, and not guilty in the last two counts, you That the evidence is insufficient to show that will return that verdict.” the liquor sold or kept for sale contained one per cent. or more of alcohol; (2) that the In a similar manner the court instructed verdict is void for uncertainty.

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

Cow 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, Action by T. H. Fahey against Winfield States, 160 U. S. 187, 16 Sup. Ct. 263, 40 L. Madden, Robert Boen, and others. JudgEd. 388, in considering a similar question, ment for plaintiff, and defendant Robert where the trial court had instructed the jury, Boen appeals. Affirmed. "that, if they considered the defendant guil- See, also, 206 Pac. 128. ty on one count and innocent on the other,

Elmer W. Armfield and Arthur B. Eddy, they should so find, and, if they found him

both of Woodland, for appellant. guilty on both counts, that they should re

W. H. Morrissey, of San Francisco, and turn a general verdict," and the jury had re

P. B. Lynch, of Vallejo, for respondent. turned a general verdict of guilty, the court said:

BURNETT, J. This is an appeal by Rob"The verdict was a general verdict. That in

ert Boen from a judgment in favor of plaina case such as this a general verdict is proper, and imports of necessity a conviction as to

tiff, based upon the verdict of a jury for $8,both crimes, is settled.”

000 against both defendants, allowed as dam

ages for personal injuries. It was alleged in In view of the uncertainty apparently ex- the complaint that Madden was the owuer of isting as to the correct form of verdict in a certain automobile and such cases, it is deemed not improper to sug

"that the said defendant Boen at the time of gest that, where two or more offenses are

the accident herein complained of was driving charged, it would be a full compliance with

said motor vehicle with the permission, consent, the statute to furnish the jury a single form

and approval of said defendant, Madden, and of verdict. In this case the following form while so driving said motor vehicle on the 14th would have been sufficient, with instructions day of December, 1917, negligently and careto insert the words "guilty” or “not guilty lessly drove the said motor vehicle into and in the blank spaces in accordance with the over the plaintiff, knocking him to the ground finding of the jury on each count:

with great force and violence, breaking his leg,

and bruising and injuring him to such an extent “We, the jury, find the defendant as

that it was necessary to amputate his right leg charged in the first count of the indictment; we just above the knee. and plaintiff's leg was in find him

as charged in the second count; fact by reason of said negligence and carelessand we find him as charged in the third

ness amputated just above the knee." count."

See State v. Blunt, 110 Mo. 322, 339, 19 S. [1] The only contention of appellant is W. 650.

that his motion for nonsuit should have been The judgment and order are affirmed. granted, for the reason that the only ra

tional conclusion that could be drawn from We concur: BURNETT, J.; HART, J. | 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 walkFAHEY V. MADDEN et al. (Civ, 2472.)

ing in an easterly direction along the state (District Court of Appeal. Third District, Cali- highway just east of Fairfield, in Solano fornia. July 17, 1922.)

county. He was returning from Suisun to

his work at Cement, and was traveling on 1. Highways cm 184(3)-Pedestrian, walking on

the left-hand side of the road, about the left side of road and turning to left, held not guilty of contributory negligence as matter

width of an automobile off of the concrete of law,

payement. When he first saw the automoA pedestrian, walking on the left side of a

bile, it was traveling on said highway in a highway and turning to the left in trying to

southerly direction, and was then about a avoid an automobile, which struck him, held not

mile away. The highway makes a right anguilty of contributory negligence as a matter gle turn from the northerly and southerly of law.

direction to the easterly and westerly direc2. Highways cm 175(1)-Rule of care as be

tion just before the point where the accident

occurred, according to the testimony of tween pedestrian and automobilist stated.

Fahey, and the automobile had rounded this An automobilist and a pedestrian must make

turn and had traveled about 25 or 30 feet, reasonable use of all of their senses for the prevention of accidents, and exercise such rea

when it swerved to the north of the concrete sonable caution as ordinarily careful and pru

part of the highway and collided with plaindent persons would exercise under like circum

tiff, intlicting the very serious injuries that stances.

are described in the complaint. When plain

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

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

constructed for automobile traffic, and to Appellant would have the court hold that which the operation of machines is ordinacontributory negligence should be imputed to rily confined. plaintiff by reason of each of the two circum- Neither can it be said that in turning to stances, that he was walking on the left the left he was necessarily guilty of contribhand side of the road, instead of the right, utory negligence. In considering his conduct and that he turned to the left, rather than the excitement and confusion of the moment the other direction, when he tried to avoid must be accorded due weight, and under such the machine. As to the former, there is no circumstances, if he made a mistake, the law law and no established criterion of conduct would hardly hold it against him. Moreover, that attributes negligence to one who walks since he was walking away from the paveon the left side of a highway. In Raymond ment, and might reasonably expect that the v. Hill, 168 Cal. 482, 143 Pac. 747, it is said: driver would attempt to keep his machine "As to foot passengers, the old common-law

thereon, what more natural thing than for freedom of use of the king's highway has not the pedestrian to try to get still further away been modified in this state by any positive when he found that the machine was bearenactment; so that it still remains the law thating down upon him? Manifestly his position foot passengers have the right to use and tra- upon the highway must be regarded in deterverse the highway at all its points, being mining what movement reasonable care chargeable only for the exercise of a due I would require of him when it appeared to amount of care, which due amount of care, in |

him that he was in danger of being run over. its quantum, is governed by the circumstances attending the use which the pedestrian actu

If he had been on the paved portion of the ally makes. Thus in this state, even in popu

highway a different situation might have lous streets of cities, pedestrians are not re- presented itself, but, under the circumstancstricted to the crossings in traversing a street, es, we think no court could hold that the but may cross it at any point. And the same only rational, conclusion is that he acted is true of their right to walk along the road bed without due caution and circumspection. of a highway.”

We think the trial court was clearly right

in denying the motion for a nonsuit, and the [2] Of course, the general rule applies that judgment is therefore affirmed. the person having the management of the automobile and the traveler on foot are both We concur: FINCH, P. J.; HART, J. 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 EVANS et al. v. SHOCKLEY, use of all their senses for the prevention of

(Civ. 4137; S. F. 10001.) accident, and the exercise of all such reasonable caution as ordinarily careful and

(District Court of Appeal, First District, Di

vision 1, California, July 3, 1922. Rehearprudent persons would exercise under like

ing Denied Aug. 2, 1922. Hearing Denied by circumstances.” 2 Elliott on Roads and

Supreme Court Aug. 31, 1922.) Streets (2d Ed.) p. 667. But it cannot be said that plaintiff by traveling as he did failed 1. Trade-marks and trade-names and unfair to meet this requirement. Indeed, there is competition 23—Use of trade-name by one room for the opinion that “it is safer." in not true owner may be restrained. the language of respondent, “to walk along

Under Pol. Code, § 3197, providing for the highway on the side of the road facing

the recording of a trade-name with secretary the oncoming traffic rather than take the of

of state, and section 3199, providing that the chance of walking on the opposite side and of

one who has first adopted and used a trade

name, whether within or without the state, is being struck by unseen automobile from be

its original owner, the rights thus acquired are hind." It is further declared that the sol

property rights, and may be protected from indiers of the United States army, when not

vasion by an injunction. marching in formation, are required to walk on the side of the road facing the oncoming

2. Trade-marks and trade-names and unfair

competition 33–Trade-name may be transtraffic. At any rate, for a pedestrian to walk

farred separately from the business. on that side cannot be said as a matter of

Under Pol. Code, $ 3199, providing for the law to constitute negligence. Moreover, it

| transfer of trade-names, a trade-name may be is to be remembered that plaintiff testif /

lawfully transferred, so as to separate it from that he was walking a machine's width from the business or commodity to which it pertains. the paved highway. Assuredly, that could not be considered a place of danger, and he Appeal from Superior Court, City and would not be chargeable with negligence in County of San Francisco; E. P. Shortall, anticipating that an oncoming machine i Judge.

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

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