Polynesian., 1859-12-03
Ghe polpnesian.
SUPREME COURT.--In Equity.
Henry May VS.. LeUi HaaeLea.-Betore Justice Robert
son, as Fice Chancellor.
DRCISION

Henry May VS.. LeUi HaaleieG-Bgfore Justice Robert
son, as Vice Chancellor.
DECISION.
Complainant was formerly in partnership with Mr..
Samuel Savidge of Honolulu constituting the firm Of
Savidge MAY. On the Ist of December 1857 the
respondent borrowed the of 81 900 from Mr.. Saw
idge for ten months, interest at two per cent per
month, payable quarterly, for which respondent gave
his prOmissory note, secured by mortgage certain
real estate The money lent to the respondent the
money of the firm of Savdge & May, to whom Mr..
Savidge assigned the note by endorsement, the time
he received it. Upon the dissolution of the partnership
the lst Of May, 1853 respondents note and mort
gage became the sole property of the complainant who
files his bill, stating that, short time before the
lst of October 1853 when the note became due, the
respondent through his agent w. H. Pease, applied to
cmpanants agent, Samuel Savidge, for an extension
of the time of payment, for year from the lst Of
October, 1853 at the same rate of interest that was
originally stipulated, which extension granted.
Complainant prays that the mortgage may be fore
closed the note has not been paid at the time agreed
upon.
Respondent admits in his answer, the making of the
note and mortgage, but denies that he asked for or OBJ
tained an extension of the time of payment for any
specific term and pleads in bar of subsequent interest,"
and costs, tender Of payment made to the complainant
on the 9th of November, 1858.
At the hearing Of the cause, the respondents counsel
objected to the introduction by the complainant Of oral
testimony prove that the time of payment of the note
had been extended by mutual agreement for the term
of year from October lst lo5S on the ground that
paro evidence could not be admitted to contradict or
vary the terms of written contract He cited in sup
port of this position HOare Graham, Campbell, p
Sc Thompson vs. Ketcham, Johnson's Rept., p. 100;
Warren VS. Wheeler ct al, 8 Metcalfs Rep, p. 81 and
other authorities That this is sound law cannot be
gansaid No legal rule is more clearly established
But in regard to the construction of this rule, and its
applicability to the present case, do not think the
thorties sustain the respondents counsel in the position
| he assumed. In my opinion the parOl proof which
the complainant has been allowed to present, is not,
strictly speaking, evidence to contradict or vary the
contract evidenced in writing by the prOmiSsOry note
and mortgage of the lst of December 1857, but proof
of contract-a collateral agreement, affecting the
same subject matter, and not defeating, but rather
affirming and supplementng the original contract OF
loan And while it is true that paro contemporaneous
evidence Is lnadmsslbe TO contradict or vary the terms
Of valid written instrument, adams Wordley,
NJ & W., p 379,) and that paro evidence cannot be
received show that at the time of making note, pay
able by its terms at specified time, verbal bargain
made that it should be payable on a certain con-
tingency, woodbridge VS.. Spooner, b. & Aid, p.
233; RawsOn w. Walker, l Stark, 36l,) yet, parOl
evidence of a bargain after note was given IS adms-
sible (Baley Bills, p 1887 and there m1y, after
a bill is drawn, be binding promise for valuable
consideration to it, and this may be proved by
parol. (Hoare vs. Graham, Campbells Rep, 81;
Smiths Mercantile Law, p. 321O contract which
seeks, by subsequent oral matter to discharge atOgeth-
er the contract created by the bill, and create new
one, may be shewn by paro evidences is not incon-
sistent with the bill. q NJ. & W. p. 379. Adams VS..
Wordley)
| In the case of Keatng VS.. Price. Johnsons Cases,
p %, the court held that evidence Of parol agree
ment to enlarge the time Of performance Of written
contract previously made is admissible. In the
of Goss VS.. Lord Nugent 5 Barn. & Ad., "a, Lord
Chief Justice DENMAN in delivering the judgment of
the court said, By the general rules of the common
law, if there be contract which has been reduced into
writing verbal evidence is not allowed to be given of
uhofV hnfv- hpflr WFIf-
ten instrument was made, during the tine that it
was in state of preparation, so as to add to or sub
tract from, or in any manner to vary or quaiy the
written contract; but after the agreement has been re-
duced to writing, is competent to the parties at any
time before breach of it, by contract not IN writ
ing either alt gether to wave dissolve, or annul the
former agreements in any manner to add to, or sub
tract from, vary quality the terms OF It, and thus
to make new contract; which Is to be proved partly
by the written agreement, and partly by the subsequent
verbal terms engrafted upon what will be thus LETT OF
the written agreement"
The complainant in this case, does not seek to vary
the terms of the written contract by proving that at
the time the promissory note made payable on the
lst of October 1S58 ten months after date the parties
agreed verbally that it should be payable in eight
months, twelve months, after date. On the contra
ry that is the foundation of compainants suit
he admits it in all its terms fully as the respondent
does but claims that Just before the note fell due ac-
cordng to its TERMS the respondent requested its ex
tension renewal, and that they entered into new
verbal agreement to extend the loan, by pOsponing the
time for the payment of the nOte from the LIST October,
1858, to the lst October, 1859. That vahd verbal
agreement to that effect might be made, equally obiga
tory upon the parties if made in writing is II seems
to me, abundantly clear
Whether the parties did, or did not, make such an
agreement, question of fact The evidence touch
ing this question is on the part Of the planant,
clear and precse while on the part of the respondent
it is indefinite and conflicting. On the whole, the
weight of evidence to clearly IN favor OF the
complainant, and must therefore regard the alleged
agreement as proved.
This being So it becomes unnecessary for me TO ex-
anime the point raised to whether not the offer Of
payment, made by respondent on the 9th of NOvem-
ber 1885, legal tender; because, while the COM
panant by his agreement TO extend the loan to the LIST
October 1859, bound himself not to enforce payment
of the note before that me he was not on the other
hand, bound to receive payment sooner If rendered to
him. The party had a right to the accommodation
for which he had barganed, and the other to the full
fruit of his investment
There remain two questions as to the amount of in
erest which the complainant is entitled to recover by
the terms of the note the interest was payable quarter
yearly; and the mortgage contains covenant that II
the interest not paid. when due the respondent
should pay interest thereon at the same rate as on the
principal But the respondent objects to paying
compound interest, on the ground that no demand OF
payment of the interest quarterly has been shown by
the complainant In my opinion the objection sound
do consider the complainant entitled to claim COM
pOunu interest, as LOT Oreach Vi tue
ed in the mortgage unless he proves such breach by
showing demand, and refusal neglect, OF payment
And no such demand is either alleged or proven. BY
neglecting make demand the interest fell due, be
has waived his claim to compound interest (See Hast
ings VS.. Wiswal, s Mass Rept., p. 455)
The other question touching the subject Of interest Is
this is the respondent bound to pay per cent per
month interest," for the time during which the loan was
extended by verbal agreement subsequently to the LIST
of October, 1858: The respondents counsel contends
that he is not because, by the statute law which wash
force the time when this contract was made. every
contract to pay higher rate of interest than twelve
per cent per annum must be in writing and signed by
the party to be charged Herewith. (Statute Laws,
vol /, PIP. 1856, 1917 COmpainant's counsel argues
that this defence cannot be raised nasmuch as the