I dissent from the order denying a rehearing of this cause upon the ground that a state of facts is shown by ample and unconflicting evidence absolutely inconsistent with the claim that there was an immediate delivery of the goods in controversy to plaintiff by her vendor at the time of the alleged sale, or that there was any actual or continued change of possession such as the letter and policy of the statute demand.
The record shows the following state of facts: A millinery business, together with the stock of goods and the premises in which the business was conducted, was transferred to plaintiff's mother. The family, consisting of plaintiff, her mother, a younger brother, and (when in Los Angeles) her father, *Page 461 took up their residence in the rear portion of the premises; the shop was in front, the fitting-room in the rear of the shop, and the living-rooms back of the fitting-room. The plaintiff and her mother for more than a year took turns in waiting on customers in the shop and fitting-room. In each of two front windows there was a sign bearing the name of the mother; another such sign was painted on the side of the house, and another on the awning in front. In January, 1898, plaintiff's mother and father executed a bill of sale of the business and stock in trade to her. In February, 1899, this bill of sale was acknowledged and some months later recorded; but no change was made in the manner of conducting the business or in the occupancy of the premises. At some indefinite time following the acknowledgment of the bill of sale, three of the signs — the two in the front windows and that on the side of the house — were changed by substituting plaintiff's name for that of her mother. This was from beginning to end the only alteration in the premises. The name on the awning in front of the shop was as before, and at what time the others were changed no one pretends to know, except that it was "as soon as convenient." But this equivocal condition of the signs, if it had existed from the day of the sale, — whenever that was, — would not have been sufficient to satisfy the requirements of the statute of frauds. The mother and daughter continued to conduct the business as before. Every day, according to their own testimony, they were both in the shop, assisting each other in waiting upon customers, and to all outward appearances sustaining the same relation to the business and the stock of goods that they had sustained before. There was evidence that a number of individuals were informed that the business had been transferred from the mother to the daughter; but verbal or written notice that a sale had been made is not equivalent to delivery of possession of the goods sold and has no tendency to prove delivery. That is something which can be proved only by the changed status of the property.
I know that there has been a remarkable fluctuation of opinion in this court — as differently constituted at different times — as to what is necessary to constitute a delivery and change of possession on a sale of personalty. Down to and including the decision in Engles v. Marshall, 19 Cal. 320, the *Page 462 court held very strictly against the vendee in all cases where he omitted to do everything possible to make the change of ownership manifest to the world. From that time forward, however, the rule was gradually relaxed in a long series of decisions which reduced the law on this point almost to the condition of a dead letter, though there were occasional revivals of the older, and, as I think, the better, doctrine. This condition of fluctuation contined until the decision in George v. Pierce, 123 Cal. 172, in which the judgment and order of the superior court upholding a transfer as against creditors was reversed on the evidence by a strict application of the old rule of Engles v. Marshall, Stevens v. Irwin, and other like cases. Since then until now that old and strict doctrine has been uniformly enforced in all cases coming to this court, and in at least three other appeals (McKee etc.Co. v. Martin, 126 Cal. 557; Lilienthal v. Ballou, 125 Cal. 183; and O'Kane v. Whelan, 124 Cal. 2001) the finding of the trial court in favor of the vendee has been set aside on a review of the evidence, the principle of all the decisions being, that there must be an open and visible change of the status of the property sufficient to make manifest to the world the change of ownership. I think it most unfortunate that there should be any relaxation of this wholesome doctrine. It is always in the power of a vendee to comply with its requirements; and to dispense with its requirements is simply opening the door to innumerable unnecessary controversies and to possible frauds.
1 71 Am. St. Rep. 42.