I dissent from the judgment of the court in this case upon the ground that the contention of appellant that a valid trust in favor of his intestate was created by Mrs. Lee is fully sustained by the decisions of this court in Booth v. Oakland Bank, 122 Cal. 19, [54 P. 370]; and Hellman v. McWilliams, 70 Cal. 450, [11 P. 659]. Those cases cannot be distinguished from this upon the ground stated in the opinion of the court. It makes no difference that in one the court merely affirmed a finding of the superior court, and in the other reversed a judgment of nonsuit. In each case it became necessary to decide what evidence would, if true, establish an oral trust of personal property. In this case the evidence of the only witness as to Mrs. Lee's declarations was in substance the same as that which, assuming its truth, was held sufficient in the cases cited, and that witness was the plaintiff in the action whose testimony could not be deemed untrue in order to find the fact in his favor. A finding in favor of the plaintiff in conflict with his own testimony, and in the absence of any other testimony cannot, in my opinion, be upheld. *Page 254