The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1908-03-06
RAYMOhDS LOSE
ON A DEMURRER

CFrOm Wednesdays Advertiser)
Judge De Bolt, in a written decision
fled yesterday afternoon. overruled
the demurrer Of defendants in the case
OF jim An Hoy y. J. H. Raymond and
Others. giving the defendants ten days
within which further to plead or an
swe-. The decision states the case
thus:
Plaintiff seeks 10 recover judgment
against defendants for the sum of So
co a. damages which he claims TO
have sustained by reason Of defend
ants alleged wrongful taking posses
sion OF certain personal property be-
longing 20 him. expeIling him from his
place of business and depriving him
o. the good viii thereof.
The facts upon which the COM
plant Is preiicated are substantially as
follows That on November %, 1905,
plaintiff executed to defendants a bill
OF sale for said personal property, the
consideration therein recited. $50, TO
be applied on a then supposed indebt-
edness Of $3.50 Of plaintiff 10 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 TgronEfuIly took possession there
%. expelled plaintiff from his said
business and deprived him of the good
viii thereof
Defendants demur to the complaint
on several grounds. but the point on
which the questions involved seem to
turn is that Of the validity ~ the
bin OF sale, which also involves the
secondary point as TO whether the title
20 the properly and the right TO the
possession thereof or either passed to
defendants or remained in plaintiff.
plaintiff contending that the bill of
sals~was and is void and did not pass
-he title and consequently no right TO
the possession OF the property. defend
ants c0ntending 10 the contrary"
Judge De Bolt proceeds to solve the
questions by the application of the
principles governing sales. Besides
Ms own reasoning on the facts al
jamin and Kent. His conclusions
leading 20 the order overruling the de-
murrer are as follows:
1T would seem both upon principle |
and plain common sense, that in this
case the reasons for holding that the
title did not pass 70 defendants are /
much stronger than where the trans /
action was intended to be one for cash. /
Il IS clearly apparent that one would
be more willing 10 take property in .
payment Of a debt than TO pay cash f.
therefor, and one who owes a debt
would prefer TO pay it with property
Hence. II 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
10 b. 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 il would ap-
pear that neither title in nor the right
of possession TO the property in ques-
ton passed 10 the defendants.
Whatever view, however, may be
E.-5 regarding the question as to
neither the title 10 the property in
v1-ved in this action passed to the
EefenGants or remained in the plain
tl1. il is obviously clear that the
plaintiff. under the facts alleged in
the complaint. was entitled to retain
the possession"