The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-03-04
RAYMONDS LOSE
ON A DEMURRER
Jim All Hoy Was illegally Ex-
PEELED Under Void Bill
of Sale.

Judge De Bolt, in a written decision
filed yesterday afternoon, overruled
the demurrer of defendants in the case
of Jim All Hoy V. J. H. Raymond and
others, giving the defendants ten days
within which further to plead or an
swer. The decision states the case
thus:
Plaintiff seeks to recover judgment
against defendants for the sum of So
600 as damages which he claims to
have sustained by reason of defend
ants alleged wrongful taking possess
sion of certain personal property be-
longing to him, expelling him from his
place of business and depriving him
of the good will thereof.
The facts upon which the COM
plant is predicated are substantially as
follows: That on November %, 1905,
plaintiff executed to defendants a bill
of sale for said personal property, the
consideration therein recited 1910, to
be applied on then supposed indebt-
edness of $3.50 of plaintiff to defend
ants; that no such Indebtedness exist
ed; that the bill of sale was in fact
without consideration; that plaintiff
retained the possession of said prop
erty until March 6, 1906, when defend
ants wrongfully took possession there
of, expelled plaintiff from his said
business and deprived him of the good
will thereof.
Defendants demur to the complaint
on several grounds, but the point on
which the questions involved seem to
= 81,
bill of sale, which also involves the
secondary point as to whether the title
to the property and the right to the
possession thereof or either passed to
defendants or remained in plaintiff,
plaintiff contending that the bill of
sale was and is void and. did not pass
the title and consequently no right to
the possession of the property, defend
ants contending TO the contrary"
Judge De Bolt proceeds to solve the
questions by the application of the
principles governing sales. Besides
his own reasoning on the facts al
legged he quotes from Mechem, Ben
jamin and Kent. His conclusions
leading to the order overruling the de-
murrer are as follows:
1T would seem both upon principle
and plain common sense, that in this
case the rea sons for holding that the
title did not pass to defendants are
much stronger than where the trans
action was intended to be one for cash.
1t is clearly apparent that one would
be more willing to take property in
payment of a debt than to pay cash
therefor, and one who owes a debt
would prefer to pay it with property.
Hence, it follows that by reason of
the supposed Indebtedness cash pay
ment was not contemplated by the
parties. They did, however, contem-
plate the existence of a debt, which,
in fact, did not exist, as shown by
the allegations of the complaint.
Where the parties intend the sale
to be for cash, ordinarily the seller
has a right to sue for the agreed
price. That rule could not be applied
in the case at bar. Thus 1t would APP
pear that neither title in nor the right
of possession to the property in ques- |
ton passed to the defendants.
Whatever view, however, may be !
held regarding the question as to
whether the title to the property in |
volved in this action passed to the |
or remained in the plain |
tiff, it is obviously clear that the |
plaintiff under the facts alleged in |
the complaint, was entitled to retain
the possession"