Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1861-08-31
Ghe polpnesian.
SUPREME COURT---In Equity.
L. KEELnKoLANI vs. JAMES ROBINSON.

lamoku, commonly called William Pitt, Esqr., do
| hereby assign unto James Robinson, his heirs ex-
ecutnrs, administrators and assigns, one half Of
the wharf. commonly called the Kings wharf, sit
uated near the southwest angle of the Fort in HO-
nOlulu, extending in front hundred yards OF
| thereabOuts, and running back one hundred wards
or thCreabOuts, upon the following conditions
First-The said james Robinson doth hereby bind
himself, his heirs, executors, administrators and
assigns to pay half Of all the expenses incur
red in altering, repairing or improving the said
wharf, and to pay to KaiamOku, his heirs. execu-
tors. administrators and assigns, one half of all
| the moneys received for the use of such wharf and
| premises and l. KaiaimOku, do hereby agree 10
Iav one half of all the expenses incurred in alter
| ing, repairing and improving the said wharf. And
do hereby bind ourselves, our heirs, executors,
administrators and assigns, to fulfill the above
| agreement. Given under our respective hands and
seals at Honolulu. this llth day Of January, in
the year of Our Lord 1927.
L. s. JAMES ROBINSON"
| The plaintiff claims by tie agreement to receive
one half of the proceeds of the premises, arising
from rents. wharfage, or uso a ship yard, after
deducting one half of the expenses of altering,
repairing, or improving said yard. That Kaiai-
moku died in 1929 leaving W. P. LeleiOhoku, his
son, his heir, who died in 1913, leaving infant
son his heir, John Pitt Kinau, who died in 1859,
being still minor, and that the plaintiff the
mother of John Pitt Kinau and his lawful heir;
and the OmplaInant AYERS that no account has
been rendered Of the net receipts and profits OF
| said wharf and premises and that large SUN is
now due; that the agreement IS no longer IN force
as against her, and that the entire use Of the
property is hers. Wherefore, theplaintif prays
that the defendant may be required to account,
and pay whatever amount may be due, and to
render the and occupation of the premises
and that such other things may be done In the
premises TO truth and justice may appertain.
TIE defendant demurs, first on the ground of
jurisdiction.
The Court, in the case of Ewing and Miller u.s.
Janion. (Haw. Rep. p. 66) declares that bill
of discovery in a matter of account filed in the
Equity side of the Court, that the bill would be
entertained notwithstanding the case was one cog
nzabe at law; and the EQUITY Court having
rightu jurisdiction for the purpose of discovery,
would also give relief. The Court take the position
that they will exercise in such cases a sound dis
cretion in exercising jurisdiction. In the case Of
Carlisle rs Wilson, (l3 Vesey, 27S, 279,) Chan
celur Erskine says, that it cannot be maintained
that this Court will take jurisdiction, and grant
relief only when remedy can be had at law, the
contrary is notorious In this case as appears
by the agreement, it is peculiarly case for the
Equity side of the Court, for the assignment to
the defendant made of one half the wharf on
condition that he should pay to Kalamoku
wharf and premises. Who render account
but hmselfi and this he has agreed to do, and the
case comes fully with the powers OF a Court OF
Equity, and the presumption is strong that the
adequate remedy could not be had in u Court of
Law.
Ii is further assigned cause of demurrer,
that it is not alleged in the Bill that the defendant
is or ever has been in possession of the premises.
The plaintiff alleges an assignment OF one half OF
the property and that he agreed account for the
rents and profits, and that he has not done 50, and
therefore she cale upon him to account and to sur
render the and occupation of the premises
although the possession is not alleged in express
terms still it is sufficiently clear To enable the e
fendant to answer distinctly and intelligently.
he has not received rents he answer, if VI
has not been in occupancy, he can disclaim. I'd
allegation is sufficient.
It is further assigned, as a cause of demurrer,
that it is not alleged that the preliminary cOndi-
tiOns of the agreement have been performed by the
defendant or by those under whom she claims.
This is sound objection, if by the construction
of the agreement, condition precedent i'm
posed on the plaintiff. By the agreement it ap-
pears that each party agreed to pay one hall of the
expenses incurred in altering, repairing and i'm
proving said wharf-and the defendant agreed to
pay half of all the monies received for the use
of such wharf and premises to the party with
whom he made the agreement, his heirs, executors,
agreement that the defendant was to have posses
sion and charge of the property, as he was TO re-
ceIye and account for the rents and prOhts-lt Is
equally clear that he might have called upon ka-
Iaimoku to have contributed his portion Of the
expenses of repairs but il he did and delayed
till the receipts sufficient to quidate it, they
would be applied for that purpose. and thereby
discharge that part of the obligation OF all this
the answer can give information. The agreement
does not set forth who shall repair the wharf, but
it does declare that each shall pay one half the
expenses If either party omitted to pay his pro-
portion to the other who had made the REPAIRS the
receipts would he properly applied to their
payment But | do not regard it in a matter of
account. as a condition precedent, but rather IN
offset if rents have been received
1t is further assigned that the Bill does not
allege any demand for an account of the alleged
rents profits or wharfage, or that this defendant
refused TO furnish such account Ii IS very evident
that in law and equity demand for an account |
under agreements of this nature should be made, !
and If denied in the must be proved. lt Is
equitable that the party should have an opportu-
nity to account, and pay, without suit and if no
time is specified when this shall be DONE it is
reasonable that he should have notice, before being
subjected to the annoyance and expense OF a suit.
1t should be alleged in the Bill that demand has
been made, and refused, and regard this cause OF
demurrer sound in Law.
As a further cause of demurrer, it is alleged |
that the premises should have been described IN |
the Bill by metes and bounds The defendant re- !
ceived the assignment Of the property, described
as the Kings wharf, situated near the southwest