Hesthal v. Myles

By the Court : The following is the statement presented to this Court by the respondent:

“This action was brought to recover possession of certain property described in the complaint, or its value, from the defendant, who was Constable of Oakland Township, and who levied upon and took into his possession the property therein described in the suit entitled ‘ S. M. Barrows v. R. H. Gans.’ It appears from the evidence that Gans was the owner of a certain billiard parlor and saloon in the City of Oakland; that he had in his employ one August Hesthal, son of the plaintiff, and one John Salino, as bar-keepers; that on the 16th of June, A. D. 1877, Gans was indebted to the plaintiff in the sum of one thousand one hundred and ninety-five dollars, for money loaned at different times before that date, for which amount plaintiff held four promissory notes by Gans, in the respective sums following: One for six hundred and fifty-five dollars, dated March 15th, 1877; one for three hundred and fifty dollars, dated April 14th; one for ninety dollars, dated May 19th; one for one hundred dollars, dated May 20th. On the date first before mentioned, plaintiff demanded payment of the above sums from Gans, but Gans was unable to pay; then plaintiff demanded a bill of sale of the place, which Gans agreed to give if plaintiff would surrender the notes and pay him the further sum of one hundred and five dollars, making in all the sum of one thousand three hundred dollars. Whereupon plaintiff paid the one hundred and five dollars and delivered the notes to Gans, who delivered the property described in the complaint, and executed a bill of sale thereof to plaintiff, and called his bar-keeper, Salino, and introduced him to plaintiff, saying: ‘ This is the new proprietor ’; that on the 22nd of June, a. D. 1877, in the suit of Barrows v. Gans, the defendant took the said property, and subsequently sold the same under writ of execution.”

The Court below charged the jury: “ How if you find from [625]the evidence in the case that possession of the property was delivered to the plaintiff on the execution and delivery of the bill of sale, and that the property was under the personal control of the plaintiff, either by himself or by his son and bar-keeper, from the 16th of June until the 22nd of June, when it was taken by defendant under attachment against Gans, as matter of law I say to you that constituted an actual and continued change of possession, and the sale would be valid as against the creditors of Gans, although the bar-keeper of Gans may have continued in charge of the property in the saloon under plaintiff in this case.”