Bunting vs. Beideman et al., 1 Cal. 181

By the Court, Bennett, J. The action is brought to recover damages for breach of a special contract for the sale of goods. An answer was put in, and the cause tried before a jury. A verdict was taken for the plaintiffs, in accordance with which judgment was rendered. It is now claimed that it does not appear that the contract upon which the suit is founded, was in writing, and that it was, therefore, void within the Statute of Frauds. The conclusion follows, if the premises be correct; and the sole question for our determination is whether the record shows that the contract set up was merely a verbal contract.

There are two ways prescribed by our Practice Act for bringing under review, on appeal, the proceedings at the trial. One is by preparing and settling a statement of facts by the parties, according to the 272d section; but there is nothing of that kind in the record. The other mode is pointed out by

section 271, which says : “On the trial in the court below, any party may “require the clerk to take down the testimony in writing; “ when so taken down, it shall serve as a statement of facts, un- “ less the parties shall afterwards agree to one.” But the clerk was not, in pursuance of this section, requested to take down the testimony, nor did he take it down. On the contrary, the papers show with sufficient certainty, that no effort was made to preserve any evidence, for the purpose of bringing the case under review in this court.

The testimony of two witnesses, taken de lene esse, is returned by the clerk, for no other reason, that we can perceive, than because it ivas on file in his office; but he does not undertake to give a transcript of the other evidence, either oral or documentary, which was offered to the jury. We think, in such case, there not appearing to have been any exception taken or objection raised, that we ought to presume that sufficient evidence of a proper character ivas given to warrant the finding of the jury.

But the counsel for the appellants contends that the certificate of the clerk shows that no written contract was proved. The clerk certifies that he has returned “ a true and complete “ transcript of all the papers, entries, depositions, written testi- “ mony, proceedings and judgment, had in said court, in said “ canse, as appears on file and of record in this office.” He does not certify that no contract in writing was proved at the trial.

Had such a contract been introduced and proved to the jury, if was not necessary to file it with the clerk, and his certificate, consequently, amounts to nothing for the purpose of showing that no such contract was proved. The judgment should be affirmed. Ordered accordingly.