I dissent. In my opinion, all the evidence in the case shows without substantial conflict that the delivery to the plaintiff by his vendor *116of the mules in controversy was merely formal, and that it was not followed by any actual change of possession. To all outward appearance, both vendor and vendee continued in precisely the same relation to the property after the sale as before. There was nothing in the status of the property after the sale to indicate a change of ownership.
In this case, as in most cases of sales of personal property which is in the possession and under the control of the vendor, the parties might easily have dealt with it after the sale in such a manner as to make the change of ownership manifest. Instead of doing so, they left it in precisely the situation in which it had been before. And the transaction, in my opinion, falls within the policy and the letter of the statute of frauds. (Civ. Code, sec. 3440.)