3. FRAUDULENT TRANSACTIONS WIFE. CONVEYANCES m299 A judgment setting aside a conveyance from the husband to the wife in a suit by the judgment creditor was supported by evidence, where the wife had determined to leave the title to th property in such form that the husband upon her death should secure her interest in it, as a gift of the joint interest was thereby effectuated beyond her power to recall it after the recovery of a judgment, and, if the gift had become effectual, there could be no return gift made by the husband which would have the effect of defeating the claims of creditors. [Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. 88 876-890; Dec. Dig. 299.] 4. APPEAL AND ERROR 1042-HARMLESS ERROR-RULINGS ON PLEADINGS. In a judgment creditor's action to set aside an alleged fraudulent conveyance from the judgment debtor to his wife, the complaint alleged the entire history of the transaction upon which the judgment was obtained, including a recitation of fraudulent acts committed by the judgment debtor. A motion to strike out these matters was denied. Held that, while it was not necessary to set out the history of the litigation or an abstract of the pleadings, these matters would have appeared upon the introduction of the judgment roll in evidence, and, though defendants admitted the entry of judgment, the technical error in the ruling was not prejudicial. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4110-4114; Dec. Dig. 1042.] [1-3] In the year 1908 the appellants purchased certain real property in the county of Los Angeles, for which a consideration of $8,000 was paid; this money, so the evidence showed, being at the time of the investment the separate property of appellant Carl B. Soale, who is the wife of appellant Wilson H. Soale. A contract of purchase was first entered into on the part of these appellants as vendees, in which contract the amount of money mentioned was agreed to be paid as a consideration for the transfer, and the character of deed mentioned in this contract as required to be given was a "grant" deed. Both of these appellants signed the contract of purchase, and when the deed was made out it contained the recital that the grantors did "grant to Carl B. Soale and Wilson H. Soale, her husband, as joint tenants with the right of survivorship," the property of which a description followed. This deed was recorded on the 21st day of July, 1908, in the office of the county recorder. On August 6, 1912, judgment was rendered in favor of respondent herein against appellant Wilson H. Soale. On the following day, and before this judgment was entered so as to become a lien against real property standing in the name of said appellant, appellant Wilson H. Soale made his deed, which purported to transfer to his wife all of his interest in the real property. Respondent, his judgment creditor, upon the entry of her judgment, caused execution to issue and a levy to be made against the interest of her judgment debtor in the real property, and then brought this action to have the conveyance of Soale to his wife set aside. Appellants in their answer denied that Wilson H. Soale had any interest in the real property at all, and alleged that the same had been at all times subsequent to the purchase thereof the sole and separate property of Carl B. Soale. This issue was decided adversely to their claims, and the question is presented here as to whether the evidence heard was sufficient Appeal from Superior Court, Los Angeles to sustain the judgment declared by the County; John M. York, Judge. Action by Grace Hilborn against Carl B. Soale and husband. From a decree in favor of plaintiff, defendants appeal. Affirmed. E. J. Fleming and S. L. Carpenter, both of Los Angeles, and Bennett & Cary, of Pasadena, for appellants. Frank L. Muhleman, Jones & Evans, and Earl T. Miller, all of Los Angeles, for respondent. JAMES, J. Plaintiff, a judgment creditor of defendant Wilson H. Soale, instituted this action to have a certain deed and conveyance executed by said defendant to his codefendant declared null and void, as having been made without consideration and for the purpose of preventing satisfaction of plaintiff's judgment. The decree was rendered as prayed for, and both defendants appealed. court. On behalf of respondent it is insisted that there is ample evidence to support the finding of the trial court that appellant Wilson H. Soale, at the time respondent obtained her judgment against him, held a joint tenant's interest in the property, which he had acquired by gift from his wife. This contention makes it necessary that the evidence be examined in detail. It must be admitted at the outset that, in so far as the express declarations of appellants. shown to have been given in testimony, such declarations negative wholly the claim that there was an intention on the part of the wife to make a gift to her husband of an interest in the real property. The trial judge, however, in making up his conclusions, was required to take into consideration all of the circumstances surrounding are [4] In respondent's complaint filed in this action she alleged as preliminary matter the entire history of the alleged transaction upon which she obtained her judgment, which included a recitation of fraudulent acts committed by the appellant Wilson H. Soale. A motion to strike out these matters was made and denied, and a bill of exceptions prepared to cover that ruling. Of course, the material thing to be shown by the respondent, the plaintiff, was that she occupied the relation of a judgment creditor. It was not necessary to set out the history of the litigation or an abstract of the pleadings of the action in which the judgment was obtained. Nevertheless, as respondent suggests, the introduction of the judgment roll on making proof of the judgment would have shown in substance the same matters which it was sought to have stricken out of her complaint in this action. The fact that appellants admitted the entry of judgment does not render any technical error of the court made by the ruling on the motion prejudicial. The judgment is affirmed. We concur: CONREY, P. J.; SHAW, J. the transaction and determine from them | feating the claims of his creditors. Taking as to what the intent of the parties really all of the facts and circumstances shown in was. Title Insurance, etc., Co. v. Ingersoll, evidence, we think that it must be said that 153 Cal. 1, 94 Pac. 94; Reed v. Reed, 135 Ill. the judgment finds some support in proof, 482, 25 N. E. 1095; Brunner v. Title Ins. & and that it should be affirmed. Trust Co., 26 Cal. App. 35, 145 Pac. 741. And if upon this review it may be said that there was some substantial evidence upon which to found the judgment as entered, such judgment cannot be disturbed. As before mentioned, it appeared that both appellants signed the contract of purchase, and, in so far as their relation to that contract is concerned, it would appear to an unadvised third party that they were taking a joint ownership in the property. The wife testified that she gave no direction as to what form the deed was to take, and the husband, when asked regarding any direction which he gave affecting that matter, was stopped by an objection from his counsel, and this objection was sustained by the court. At any rate, it did appear that in the following year, about April, the wife, so she testified, learned of the condition of the deed as to its form, and knew that it made her husband the joint tenant in the property with herself. When asked whether, if plaintiff had not obtained a judgment against her husband, she would have required any change to be made in the deed, she expressed uncertainty, and left her testimony as to that particular subject to a fair inference to be drawn by the court that she would not have required any change to be made. At any rate, she testified that, when her husband told her of the fact that judgment had been obtained against him by this respondent, she requested him to make the deed to her, which he did immediately. It fairly appeared also that the appellants kept their bank account in a form so that it The words "general election," in the Bakersfield city charter adopted at November, could be drawn from by either party. We 1914, election, which provides for referendum have, then, it shown in proof that the appel-elections, and declares that a petition protesting lants jointly engaged to purchase the real estate mentioned in the pleadings and that they received a deed by which their interests were declared to be joint, with right of survivorship. As to who gave the direction to have the deed made in this somewhat unusual form seems immaterial, because the wife, when she learned that it had been so made, raised no objection to it until three years had elapsed, and at the trial fairly in-charter. timated that she never would have objected to it had it not been that judgment was obtained against the husband. If she had determined to leave title to the property in such a form as that the husband upon her death should secure her interest in it, then we think a gift of the joint interest was effectuated beyond her power to afterwards, and after a judgment creditor had reduced a claim against her husband to judgment, recall. If the gift had become effectual, then there could be no return gift made by the husband which would have the effect of de BAKERSFIELD & KERN ELECTRIC RY. against the passage of an ordinance shall be signed by electors of the city equal in number to 25 per cent. or more of the vote "cast at the last general election," refer, when the provision is considered in connection with other provisions of the charter relating to elections, to the last general municipal election, and, where no general municipal election has been held since the adoption of the charter, the question of the sufficiency of a referendum petition depends on the number of votes cast at the last general municipal election preceding the adoption of the [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. 108. For other definitions, see Words and Phrases, First and Second Series, General Election.] Petition for writ of prohibition by the Bakersfield & Kern Electric Company against George W. Hay and others. Demurrer to pe tition sustained, and writ of prohibition denied. Short & Sutherland, of Fresno, and Borton & Theile, of Bakersfield, for petitioner. E. F. Brittan and Walter Osborn, both of Bakersfield, for respondents. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes are to hold office until their successors are elected and qualified; and it is provided that "a general election shall be held on the second Tuesday of April of the year 1917, and each odd-numbered year thereafter," etc. Reading together the several sections of the charter which have relation to the question at issue, we are satisfied that the words "general election," as contained in section 32, are there used in the same sense in which the same words are used in section 67, and that they refer to the last general municipal election. PER CURIAM. Prohibition. On the 20th | provisions of this charter, to elect officers as day of September, 1915, the city council of herein provided." The officers thus elected the city of Bakersfield adopted an ordinance relating to the regulation and control of the operation of automobile busses within that city. Within 30 days thereafter there was filed with the city clerk an instrument protesting against the passage of the ordinance. This protest was signed by 880 electors of the city. The council, having declared this protest sufficient to require a referendum vote upon said ordinance, have ordered an election and referendum thereon to be held on the 11th day of January, 1916. The petitioner claims that the protest is insufficient to authorize such election or to cause a suspension of the ordinance, and in support of this claim alleges that the protest does not contain the names of a sufficient number of electors. The respondents have filed a general demurrer to the petition herein, and it has been stipulated that the case may be disposed of in accordance with our decision upon that demurrer. The petition herein directs the court's attention to the fact that at the nominating election held on April 6, 1915, in the city of Bakersfield councilmen were elected in three of the seven wards of the city, that (except members of the board of education, as to which the district includes territory outside the city limits) no other officers than councilmen were required to be elected under the provisions of the charter, and that at the so-called general election held on May 7, 1915, no election was held in the said three wards. For this reason petitioner contends that there was no general election. Even if this were conceded, it would not aid the case of petitioner. If no general municipal election was held by the city of Bakersfield since the adoption of this charter, the test would relate back to the last general municipal The present charter of the city of Bakersfield was adopted by the electors of that city at an election held on the 7th day of November, 1914, and, after its approval by the Legislature, was filed with the secretary of state on January 23, 1915. Stats. 1915, p. 1552. Section 32 of the charter provides for referendum elections, and it is there required that a petition protesting against the passage of an ordinance must be "signed by electors of the city equal in number to twenty-election preceding the adoption of the charfive per centum or more, of the entire vote cast at the last general election." It is further provided that: "The council shall submit the ordinance to the electors of the city either at the next general municipal election, or at a special election, and such ordinance shall not go into effect unless a majority of the electors voting on the same shall vote in favor thereof. The provisions of article VII respecting the forms and conditions of the petition and the mode of verification and certification and filing, and the ballot to be used, shall be substantially followed, with such modifications as the nature of the case may require." The petitioner contends that the general election referred to in section 32 is the last general state election, and not the last general municipal election. It is conceded that, if the required number is to be tested by the vote cast at the last general municipal election, the number of signatures upon the protest was sufficient; and it is shown by ap propriate allegation in the petition that the entire vote cast within the city of Bakersfield on the 3d day of November, 1914, at the general election held on said date, at which a Governor was elected, was 6046. Section 67 of the charter is in article 7 relating to elections, and provides that within ten days after the charter shall have been ratified by the Legislature, and the necessary certified copies thereof have been filed and recorded, "the governing body of the city of Bakersfield shall call a nominating ter. Petitioner does not deny that under such test the protest to which this petition refers would be found sufficient. There is a general law entitled "An act to provide for direct legislation by cities and towns, including initiative and referendum." Stats. Ex. Sess. 1911, p. 131. Conceding that that act does not apply to the city of Bakersfield, counsel for petitioner argue that the referendum provisions of the city charter are modeled upon the terms of that statute, and that, notwithstanding some differences between the charter provision and the provisions of the statute, the court should apply the rule that one statute founded upon another is deemed, in so far as it follows the terms of the previous statute, to adopt also its meaning. The statute provides for referendum petitions which shall be signed by qualified electors of the city or town "equal to ten per cent of the entire vote cast therein for all candidates for Governor of the state at the last preceding general election at which a governor was voted for." The argument is not convincing. We have no evidence that the referendum provisions of the charter were drawn from those of the statute to which counsel refer; and, even if they were so derived, the failure to copy words distinctly defining the last preceding general election as a state election serves to indicate that the charter framers preferred that the should be signed by at least 25 per cent. of the number of electors voting at the last general municipal election, rather than that the test should be 10 per cent. of the entire vote cast at a state election. The demurrer is sustained, and the petition for writ of prohibition herein is denied. claimed in the amended petition was the same as that claimed in the original petition. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, ING. 353-ACTION FOR PRICE-PLEAD As forms of action were abolished by Code Civ. Proc. § 307, and section 452 requires pleadings to be liberally construed with a view to substantial justice, a complaint, averring that BAKERSFIELD & KERN ELECTRIC RY. plaintiff sold hay of given value to defendant, CO. v. HAY et al. (Civ. 1933.) but the defendant defaulted in its agreement to pay on dates specified, states a cause of action (District Court of Appeal, Second District, Cal- for goods sold and delivered, though no deliv Short & Sutherland, of Fresno, and Borton & Theile, of Bakersfield, for petitioner. E. F. Brittan and Walter Osborn, both of Bakersfield, for respondents. PER CURIAM. In response to an alternative writ issued herein, the respondents have filed a general demurrer. The facts are the same and the questions presented for decision are the same as in Bakersfield & Kern Electric Railway Co. v. George W. Hay et al. (Civil No. 1934) 155 Pac. 132, petition for writ of prohibition, in which decision has been filed this day. For the reasons stated in the opinion filed in that case, the demurrer is sustained, and the application for peremptory writ of mandate herein is denied. JOHNSON v. DIXON FARMS CO. (Civ. 1382.) (District Court of Appeal, Third District, California. Nov. 27, 1915, Rehearing Denied by Supreme Court Jan. 26, 1916.) 1. SALES 353-ACTION ON CONTRACT-Cом PLAINT. A complaint averring that plaintiff sold hay to defendant, and that defendant promised to pay the amount on given dates, but failed, states a cause of action on a contract of sale, without an averment of delivery for, as Civ. Code, § 1721, defines sale as a contract by which for a pecuniary consideration called a price one transfers an interest in property, delivery is not essential in all cases to the possession of title. [Ed. Note.-For other cases, see Sales, Cent. Dig. 88 995-1004; Dec. Dig. 353. For other definitions, see Words and Phrases, First and Second Series, Sale.] 2. JUDGMENT 106-DEFAULT-ANSWER. Where the complaint was verified, the answer, to state a defense, must, under Code Civ. Proc. § 446, also be verified, so where an unverified answer was filed, plaintiff is entitled to have it stricken on motion and default judgment entered, or, in the absence of an order striking the answer, to a judgment for want of an an swer. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 160, 162, 180-197; Dec. Dig. 106.] ery of the hay was averred, the common-law disand sold and goods sold and delivered being tinction between an action for goods bargained abolished, and averments of sale implying a de livery. [Ed. Note.-For other cases, see Sales, Cent. Dig. $$ 995-1004; Dec. Dig. 353.] Appeal from Superior Court, Solano County; A. J. Buckles, Judge. Action by Martin Johnson against the Dixon Farms Company. From a judgment for plaintiff, defendant appeals. Affirmed. Rehearing denied in Supreme Court, 155 Pac. 136. T. T. C. Gregory, Thomas A. Allan, and Dan Hadsell, all of San Francisco, for appellant. W. U. Goodman, of Fairfield, for respondent. HART, J. This is an appeal by the defendant from the judgment on the judgment roll alone. By the filing of a verified complaint, the plaintiff brought the action to recover from the defendant judgment for the sum of $609, alleged to be due the former from the latter by reason of a transaction which is stated in the complaint as it was originally filed as follows: "That on or about the 1st day of December, 1913, plaintiff sold to said defendant fifty-three tons of hay at twelve dollars per ton, amounting to six hundred and nine dollars; that said defendant promised to pay said plaintiff the said amount as follows: One-half thereof to be paid on the 1st day of January, 1914, and one-half on the last day of January, 1914." It is then alleged that the defendant "failed and neglected to pay said amount at said times, and that the said amount, and the whole thereof, still remains due, owing and unpaid." The defendant demurred to the complaint on both general and special grounds. The special grounds of demurrer are that the complaint is uncertain, ambiguous, and unintelligible, because it does not appear therein, nor can it be told therefrom, whether the defendant was required to pay for the hay has been delivered to the defendant, etc. before or after delivery, or whether the hay Where the original verified complaint stated The demurrer was overruled, and thereafter, a cause of action and plaintiff was entitled to in due time, the defendant filed an unverified judgment because the answer was not verified, answer or a general denial to the complaint. error in allowing an amendment to the complaint is harmless and should be disregarded unThe judgment recites that the defendant der Const. art. 6, § 42, where the amount was not represented at the trial, but it is 3. APPEAL AND ERROR DISREGARD OF ERROR. 1170-REVERSAL For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes stipulated that, during the course of the trial | stated a defense to the cause of action set up (evidence having been taken), the plaintiff in the complaint, to have filed a verified anwas permitted by the court to add to the swer. Code Civ. Proc. § 446. This it failed charging part of the complaint, above quot- to do, having, as seen, merely filed an unveried, the words, "and delivered," inserting said fied answer, and the "answer" so filed conwords therein immediately after and follow- stituted no defense to the cause of action ing the word "sold." By the addition so pleaded by the plaintiff. The plaintiff was made, the complaint was made to read: therefore entitled to have the answer stricken out on motion and a judgment by default thereupon entered, or, in the absence of an order striking the answer out, to a "judgment for want of an answer." McCullough v. Clark, 41 Cal. 298; Hemme v. Hays, 55 Cal. 337; Hearst v. Hart, 128 Cal. 327, 328, 60 Pac. 846. "That on or about the 1st day of December, 1913, the plaintiff sold and delivered to said defendant" the hay, etc. A copy of the complaint as so altered or of the language added thereto as indicated was not served on the defendant or its counsel. [1] The position of the defendant is that the action was intended as one for goods sold and delivered, but that the complaint failed to state such a cause of action because it omitted to allege that the goods alleged to have been sold had been delivered, and that therefore the demurrer should have been sustained. It is further contended that the alteration made in the complaint at the trial by inserting therein the words, "and delivered," so that a cause of action for goods sold and delivered was stated, constituted an amendment of that pleading, and that therefore it was, under the terms of section 432 of the Code of Civil Procedure, entitled to be served with a copy of such amendment or the complaint as amended, thus giving it the opportunity to which it is entitled by virtue of said section to exercise its right to answer or demur to the amendment or the complaint as amended within the ten days allowed thereby. We can see no reason for doubting that the complaint, in its original draft, stated a cause of action on a contract of sale. A "sale" is defined by our Code to be "a contract by which, for a pecuniary consideration, called a price, one transfers an interest in property." Civ. Code, § 1721; 35 Cyc. 25. In other words, a sale is the transfer of the title to a thing from one to another for a consideration. Thus it is plain that a contract of sale and the title to personal property thereby transferred may be consummated without a delivery of the property to the vendee, the rule requiring the possession of such property to be delivered to the vendee to render the sale valid as against the creditors of the vendors being one of evidence only and in no way enters into the contract of sale as an element thereof, so far as the parties thereto are themselves concerned. It is hence very clear that the complaint, in its original draft, having alleged that the plaintiff sold the hay to the defendant, that the latter promised to pay for the same in two installments on specified dates, and that it defaulted in its promise so to pay, at the least stated a cause of action on the contract of sale so pleaded, and that, therefore, the demurrer was properly overruled. [2] The complaint having been verified, it [3] Thus it is to be observed that the plaintiff, under his complaint as it was originally filed, was entitled to and properly awarded judgment for the sum for which he sued, and that by the alleged amendment of his complaint as indicated he could have obtained judgment for neither more nor less, nor, indeed, have obtained any different relief from that originally prayed for and which he finally received. In other words, he was admittedly entitled to judgment for the amount sued for on the contract of sale, whether the goods were or were not delivered. We cannot, therefore, perceive wherein the defendant could derive any benefit from a decision returning the cause to the court below for further proceedings, assuming that the alteration of the complaint in the respect shown may truly be said to have resulted in changing the cause of action or amounted to an amendment of the pleading in a material particular. Indeed, we are of the opinion that, in view of the peculiar state of the record in this cause, the appeal here should be considered and decided under the light and according to the spirit and intent of the recent amendment of section 41⁄2 of article 6 of the Constitution, for we cannot say that the order allowing the purported amendment of the complaint has resulted in a miscarriage of justice. [4] But we may, we think, safely take another view of the question presented. While it would, of course, always be the better practice and responsive to the rules of good pleading, in an action for goods sold and delivered, to specifically and directly allege the fact of delivery as well as the fact of sale, we cannot bring ourselves to the belief that the fact of delivery is not necessarily implied from the averment that the hay was sold to the defendant, and therefore we think the complaint in this case, as it was originally drafted and filed, sufficiently stated a cause of action for goods sold and delivered. A word or a phrase should be interpreted according to the connection in which it is used and the general purpose for which it is employed in particular instances. While in a contract of sale the phrase, "goods sold," might not necessarily imply that the goods had been delivered, it seems to us that deliv |