Polynesian., 1859-11-26
Ghe polpnesiaa.
SUPREME COURT--In Equity--Decisiou os
Chief JusIice a lien u ChunceIIor.

SUPREME COURT--In Eqnity--Decision OF
Chief Justice Allen ns Chancellor.
J. MONTGOMERY rs. CHARLOTTE CoADY, Erecla,ir of
r. COddy, deceased, and guardian Of the heirs.
This is a Bill in Equity brought by the complainant
for his proportion Of the rents and profits of certain
real estate situated in Kaahumanu street. Honolulu
and now occupied by J. F. COlburn and Others from
October 18th, 1855, to the date of the Bill.
1t appears by deed hearing date 23d October 1850,
that K Z. JaniOn, for the consideration of 81 500 sold
and made to A. B. Howe, that piece of ground on
Kaahumanu street aforesaid which the large three
story store stands, and which the said Howe forthwith
built thereon.
That by deed bearing date Nov. 25, 1851, said
Howe in consideration Of 81, $50, made Ceady
Cahoon and Lake. then copartners one undivided half
of the said building, retaining the land to himself And
it thereby stipulated that said Howe his represent
aves and assigns should occupy the two upper stories
of said building forever, without rent and that the said
COady, CahOOn and Lake. their representatives and
signs should occupy the ground story of said building
for five years from 2Sth October, 1850 viii hcut rent
and that at the end of said five years, Howe his rep
resentatives or assigns should fix price at which he
they would purchase the interest of Coady Cahoon
and Lake in said building, sell them his interest in
said building, and if COady ct ais, their representatives
assigns should buy HOaoes interest in the blaioing
they should then purchase all HOoe's interest in the
land at $500. Coady afterwards purchased out Ca
hoon and Lakes interest, and took j. c. BuloDs into
partnership.
By deed bearing date Nov. &c, 1851, said Howe sold
all his interest in said property to Pierce Hegary and
Henry Sea, as tenants in common, for $6,uGO
By deed of Mortgage dated July 9th, 1855, Henry
Sea mOrtgaged his mOety of said property to J. Mont
gomery for Sll00 and in June, 1866, said Montgom-
cry purchased all Seas equity of redemption therein,
which, with said mortgage and interest, stood him in
$500, for land and building.
In September, 1855, said Buions purchased all He
garys moety of HOwes interest in the land and build
ing for $3.50, account of the partnership Of COady
& Co., and paid for by partnership funds.
The said five years for which Coady and others were
to occupy the lower story, rent free, expired the
28th October, 1885, which time Coady and Bulions
occupied it.
To carry out the contract it was incumbent the
assignees of Howe, who were the 2Sth October,
1855, the complainant in this Bill, and COady & Co.
to make offer to Coady to sell him their interest,"
which was mOiety, buy his interest which was
the same in the buildings, at his optiOn in this event.
if COady elected to buy, he was to pay S4,5OO for the
land.
1t appears that the 23d October, 1866, the com
painant commenced q correspondence with Bullions,
of the firm Of Coady Co., upon the subject of fixing
the price at which they as assignees of Howe should
offer to sell their interest to COady, buy Coady in
terest in conformity with the stipulation in the Inden
ture of the 25th Now, 1851. No reply having been
received this note of the 3d. the complainant writes
again. offering to submit the question of their respect
i've interests TO the award of persons to b mutually
chosen.
On the 26th October, 1856, Mr. BulliOns addresses
Mr.. Montgomery a note, in which ne says 90 have
given the matter my consideration and willing to
join you in proposition to Mr.. CUady to name the
sum of $4,000, the consideration for which he shall
buy interest in the building exclusive of the land
or sell to US his interest in the building
On the same day Mr.. Montgomery addresses another
note in reply declining the offer of 50O0 and offering
to join him in offering 500, the price at which
they should sell COady their interest in the building
exclusive of the land, purchase his interest in the
building alone and if this proposal did not with
his approval, he renewed his offer of referring the
to be fixed by competent persons mutually cho-
sen and that the said Buions by letter dated the
following day, declined the foregoing propositions.
No offer was made in accordance with the terms Of
the Indenture, and the complainant alleges the
to be that Coady being interested in the portion of
Hegarty as partner in the house of Coady Co.,
would cooperate with the complainant, and make
q reasonable proposition ; that he took every
within his power to comply with the contract, but that
he was prevented by Coady & Co. from doing it. Mr..
COady was in the anomalous condition of being both
buyer and seller. 1t is contended the part of the
respondent that the efforts Of the complainant with
Coady Co. to fix upon sum to offer Coady for his
interest. receive for their interest at his option,
were of legal effect, they resulted in adjust
ment of the respective interests of the parties in the
said premises, in a division of the
1t is alleged and admitted that the interest of He
garty, which the the complainant, sold
az public auction for $3.50 in September, 1866. This
mode of sale is regarded as proper mode of fixing
value and yet Coady and Co.. who made this purchase,
proposed to Mr.. Montgomery TO offer Coady $4,000
for his moety of the building carrying with it the
cessy of keeping the lnnd which, the valuation in
the contract was "a, 500. The complainant regarded
$1,000 an unreasonable sum and, judging from the
valuation as fixed at the auction sale, it so
1t is contended that the complainant had subjected
himself by the contract to this hazard of having
socate who would disagree upon amount to offer
this is true-but he had not subjected himself the
hazard Of having associate with Coady, and
fer the purpose of forcing the complainant to terms
disprOporonae to the value of the premises to suf
for injury he has done.
do not regard the proposition of Coady and Co.
to the complainant bona tide. Coady, the partner
of Coady & Co., had put himself in position where
he was bound to act in good faith and to cooperate
with the complainant in fixing reasonable sum, which
he did not do The complainant conducted on the
highest principles of equity in carrying out the terms
of the Indenture, but defeated by the want of
operation the history of the transaction fully shows
Neither equity nor law will justify advantage to be
taken from such q position voluntarily assumed.
regard the exclusive rights of Cosby to the lower story
as terminating on the 18th day Of October, 1855.
In view of all the circumstances Of the case am Of
opinion that the complainant is entitled to fourth
part of the rents and profits arising from said prem
ses and quarter part Of the ground rent the whole
of which is the interest $780, the estimated value
of the land Interest to be cast said ground rent
from the time the rents were received.
II is ordered that be referred to the Master to
certain the whole amount Of rents which have been
received by the parties in interest," and report the same
to the Court.
May I, 1859.
JOHN MONTGOMERY u.s. CHARLOTTE CoADY, Erecutrir,
of r. Coady, and guardian of his minor heirs.-
In Eq1sitz--Bejore the full COuaf-On apDea! from
the decision Of the Chief Justice at CAGn6ers.
Justice Robertson