Hexter v. Schneider

• Decision Date: 24 November 1886
• Citation: 12 P. 668,14 Or. 184
• Parties: HEXTER v. SCHNEIDER.
• Court: Oregon Supreme Court

12 P. 668

14 Or. 184

HEXTER v. SCHNEIDER.

Supreme Court of Oregon

November 24, 1886

Appeal from circuit court, Multnomah county.

This was an action for replevin of goods brought on an execution sale. The firm of Clinton & Fagan, conducting the Elite Theater in the city of Portland, owned the property in controversy in December, 1883, under these circumstances They had been attached by one Buckley, of San Francisco, and their property, including the safe and piano in controversy was then in the hands of the sheriff. They had been dealing with the firm of Fleckenstein & Myer, who, in order to get such attachment released, procured the plaintiff, who was their book-keeper, to purchase the property of said Clinton &amp Fagan. Fleckenstein & Myer furnished the money to Hexter to make the purchase. The attachment was released, and a bill of sale executed by Clinton & Fagan to the said Hexter, and the property delivered to him. Hexter placed Clinton in charge of the property, and continued the business on his own account and in his own name for some time, until it was finally closed. Afterwards he rented the safe and piano to Mrs Clinton, who moved the same into what is called the "Tivoli Theater Buildings." The property was afterwards sold by the constable on an execution against Clinton, and purchased by defendant. There was testimony that Hexter was present at the sale by the constable, and that, before the sale, Hexter, by his attorney, made a demand for the property of the constable. During the pendency of the trial, the defendant asked leave to amend his answer by pleading that the action abated for the alleged reason that the real parties in interest were Fleckenstein & Myer, and not Hexter, which application was denied. For the rest, the case is sufficiently stated in the opinion. Judgment was rendered for plaintiff, from which defendant appeals.

F.V. Drake, for appellant.

Jos. Simon, for respondent.

STRAHAN J.

This is an action of replevin brought to recover the possession of one McNeal & Urban safe and one Decker piano, alleged to be of the value of $600, and damages for their detention in the sum of $50. The amended answer denies all of the allegations of the complaint, except the taking and detention of the goods. The defendant alleges, by way of justification of the taking and detention, that on the twelfth day of May, 1885, one F. Berliner commenced an action against one R Clinton, in Madison precinct, Multnomah county, Oregon, to recover $190; that an attachment was duly issued in said action; and that said constable duly served the summons therein on the defendant, and attached the property in controversy as the property of R. Clinton, the defendant therein; that on the twentieth day of May, 1885, a judgment was duly rendered in said action against the defendant for $190, and $66.70 costs; and that an execution was duly issued on said judgment, and the attached property applied thereon, and sold by virtue of said execution; and that at such sale the defendant herein became the purchaser of said property for the price and sum of $180, which he then and there paid to said constable; and that said constable then and there executed and delivered to him a bill of sale thereof. The answer also alleges that, at the time of the sale, the plaintiff was present, and made no claim to the property, nor forbid the sale, nor gave defendant notice of his claim, and that defendant believed and understood that he would acquire title to said property; that it had theretofore been, and was then, the property of said R. Clinton, and that defendant bid and paid his money in good faith, under the full conviction that said property was the property of said R. Clinton, and of no other...