The Hawaiian gazette., 1871-03-08
sapreme Courr-In nanco.
JANUARY TERN, 1871.
Present, Chief Justice ALLEN, HARrwH1, A.
s., WIDENANN, II. A., Associate Justices.
LII, [r;hcln.a

OPINION OF the COURT BY ALIEN. c. J.

This is an action of Assumpsit. 1t is alleged
in the complaint that contract was made by
these parties at San Francisco, by which it was
agreed thaeothe plaintiff should come to this
Kingdom and take charge of a sail-boat or yacht
OF about u tons burthen, which the defendant
agreed to furnish. 1t is further alleged that the
defendant guaranteed the sum of Sl00 per month,
as the minimum for the plaintiff s share of the
earnings of the boat. In pursuance of said agree
ment, the plaintlff came to this Kingdom and
repaired to Lanai, and was ready to comply with
the terms of the agreement, but that the de-
fendant had wholly failed to fulfill its terms on
his part.
1t appears in evidence that the plaintiff re-
paired TO Lanai and remained there one month
that the plaintiff rendered him a whale-boat
which was 80 feet long and feet wide, with
small deck over, for the purpose agreed upon,
but that the plaintiff refused to undertake the
sailing the boat, and said " that the place did not
suit him and that be was going to leave that he
did not come here to work like slave, and that
he would not work in lifting freight in aud out of
| the boat"
Evidence was introduced, also, tending to show
the probable profits to be derived from the
sailing of the boat, all which was submitted to
the jury under Instructions of the Court, where
upon a verdict was rendered for the defendant,
which, on motion, was set aside as against law
and evidence and a new trial ordered, to which
exceptions were taken by the defendant.
! 1t appeared in evidence that the defendant had
guaranteed 500 month from the profits to run
boat between two Islands, Maui and Lahaina
/ for three months and that this should afterwards
/ be increased
/ 1t fnrther appeared in evidence by a son of the
1 defendant in the words following, viz: q The
/ plaintiff left place on the morning of the
oath of March last about one week after his ar
rival; was present at the time of his departure,
and heard conversation with my father Plaintiff
called to my father, who stepped out in front Of
the house. Plaintiff spoke first, and said the
place did not suit him, and he was going to leave;
said be did not come here to work like slave.
My father said to plaintiff There is the boat for
you to try. 1t can make plenty of money for
you and me both, if you will run it size Of the
boat 30 feet lotg4nd feet wide, and has small
deck over 1t now runs two trips a week to La
haina, with a kanaka in charge, and produces $40
to $50 per week with one intelligent white man
in charge, the sales of sheep at Maalea and other
ports would be doubled, and a large and profitable
return freight in poi salt, al, tobacco and ava be
had, so as easily to make the gross receipts 500
a week, one half of which would be profits The
/ boat has carried 30 sheep a trip and six or eight
passengers,-could carry more. The sheep are
my fathers, and worth 81 head at Lanai, which
sell at Lahaina for Sl.50 each, and at Wailuku,
! for Sl.75 and 81 per head. Plaintiff refused to
take charge of the boat said he would not work
in lifting freight in and out of the boat. My
father continued his remarks, saying to plaintiff
There is my boat. which is good sea-boat. and
can make handsome profit for US to share.' AS
plaintiff turned to 60 away, my father repeated
the offer of the boat for the plaintiff to run.
When the Lahaina Mills are running, the boat
makes three trips week, carrying on an average
% to 30 sheep each trip. At the time the
plaintiff at Lanai, the Lahaina Mills were
running, and the boat could have done u good
! business"
On the crOss-examination, the witness said
that the greatest capacity of the boat was 80
sheep that 20 cents head was the usual
freight, two trips a week. ont Of which all ex
penses of crew and so forth had to be paid !;
that he never heard his father order plaintiff to
take charge of the boat or do anything else pre-
vious to the morning of plaintiff 5 intmation of
] a.. ~,
previously commanded the boat only got Sl.5O
trIp that a foreigner named Fred subsequently,
took charge of the boat ;--he was unable TO
say whether he got over $50 per month, or
whether the profits of the boat could afford that
rate of compensation, as the least of share of
the net profits.
As it appears that the defendant had guaran-
teed 500 per month from the business, it would
seem that the risk was open to him, and that it
was incumbent upon the plaintiff to enter upon
the business, and test it by actual experiment
and if the profits were less then the sum agreed
upon, he had his claim against the defendant.
Proof would have been required that the de-
fendaut was Irresponsible, and that the boat was
inadequate for the purpose which would excuse
the plaintiff from undertaking to fulfill his part
Of the contract, before he could call on the de-
fendant
1t is prevailing rule, as stated by IIilIiard in
New Trials, $40, and sustained by numerous
authorities, that a verdict will not be set aside
unless clearly, palpably, decidedly and strongly
against the evidence.
From the evidence it appears that the plaintiff
made no effort to fulfill his contract lie might
at least have tested it by experiment as that re-
quired very little time and more especially as the
boat being under his control, the whole earnings
were in his hands. Having the earnings Of the
boat and the guarantee Of the defendant the
Court is unable to see why the plaintiff should
not have made an effort to fulfill the stipuIations
which be had made; at any rate. it is not a case
in which the Court can interfere. The principle
is sound ore that it will not set aside verdict
because, upon examination Of all the evidence.
even, they might have arrived at result different
from that found by the jury. Gauld VS.. White,
Foster, 17s, II is not sufficient, eyen that the