Hoowe v. Kreling

Fitzgerald, C. The complaint in this action, in substance, alleges that on the fifth day of May, 1887, plaintiff was the owner and in possession of a saloon and its [137]contents situated in the city of San Francisco; that on said date he was indebted to various persons, amounting in the aggregate to about $1,029.40; that on that date he was induced to execute a bill of sale of said property upon representations made to him by the defendant Kreling, that if he, plaintiff, would transfer to Kreling said property he could and would effect a sale of the same for a sum largely in excess of plaintiff's indebtedness, and that out of the proceeds of such sale Kreling would pay said indebtedness and turn over the balance to plaintiff; that plaintiff, relying wholly upon these representations, executed the bill of sale, and transferred the property in question, with the understanding and acting under the belief that he had executed the same and transferred the property to Kreling; that Kreling caused the name of defendant Kolbe and the consideration of $750 to be inserted in the bill of sale without the knowledge or consent of plaintiff; that when be executed said instrument he was embarrassed financially, sick, and in such a condition mentally as to be unable to attend to business, and that at the time of its execution he relied wholly upon said representations, without reading it or having any knowledge of its contents; that he never intended to and did not transfer the property to Kolbe, but to Kreling, who received it from plaintiff and thereafter continued to claim and exercise acts of ownership over the same; that Kolbe never owned or claimed any interest therein, but “was simply the creature and tool of the said Kreling for the sole purpose of enabling the said Kreling to obtain the said property for his sole use and benefit, to the loss and damage of plaintiff”; that the consideration expressed in the bill of sale was not received by plaintiff; that Kreling has converted said property to his own use, “and refused, and still refuses, to account or make any payment to plaintiff therefor; that at the time of said transfer the said saloon contained merchandise, fixtures, and furniture of the value of about $1,500.”

There was a demurrer interposed to the amended [138]complaint, which, upon the grounds therein stated, was properly overruled.