The Hawaiian gazette., 1871-08-09
2. S. SPALDrSG,
For az West Nam Suan1. Associnlio

Tut bic ucSt 4uuut ChytH dSSOCluItOH.
On receipt Of this letter the defendants offered
to make Kanui refund the $40 she had received
and to pay back the so which the plaintiffs had
advanced to Kealo, which offer was declined
The cane was taken off by the defendants the
same day, and contained fully two and one hall
tons of sugar, worth $3.50 dollars in the market
Deducting s35 ton, the price to have been
paid Kealo, and the plaintiffs loss Is Sl62.50
without reckoning cost of manufacture, Of which
there is no evidence.
July 10, 1871, Kanui and her husband executed
to the defendants written lease Of said land for
the term of FIVE years from April Is, 1871, for
themselves and the minor heirs, of whom they
had been appointed guardians. The rent for the
entire term was $50
Under the first agreement with Kealo, the
plaintiffs paid him Ss7 for his crop, Of which he
paid $40 on debt of Namaka's. Soon after Ma
maka's death. the widow, Kanui, made a short
visit at IAhaina, returning Immediately to Hone
lulu, and at no time, until last April, appearing
to object to Kealo's occupation Of the premises
and cultivation of the land.
The defendants counsel objected to the ad-
instability Of the articles Of agreement Of Oct 8,
1869, in favor of the plaintiffs, Q) because their
names do not appear therein, or (2,) TO affect
Namaka and his heirs, because they are not
parties to the agreement To the ruling Of the
Court against the first objection, exception was
taken and allowed. To the further objection by
the defendants counsel, to evidence Of Namaka's
assent to the said agreement on the ground that
the terms of q written agreement can not be
varied or enlarged BY parole, and that the own
er's parole license to plant and sell cane for seven
years on his land is void as within the Statute Of
Frauds, parts and 5, Sect. 1858, Civil Code,
the Court ruled, that parole license to execute
written lease would not be good, but that such
license might authorize one to plant and sell
crop, provided the agreement were TO be per-
formed within one year.
In accordance With this ruling, the articles Of
agreement made oy the knowledge and consent
of Namaka are not to their full extent binding
on his heirs. But the fact that Namaka allowed
Kealo to occupy and cultivate tee land, and
assented to the contract for cultivation and sale
Of cane upon his land, operates to create q
tenancy at will, or at least license to plant
cultivate and sell cane crop rifsin year from
the making Of the agreement. In either case,
Kealo was entitled to the crop which he planted
and worked before Namakss death, and which in
fact he delivered to the plaintiffs.
The conduct Of Kanui in allowing Kealo to con
tinus to occupy the land and 10 cultivate another
crop. knowing as abe may be presumed to have
known, the agreement Of Oct. 6, 1869, places it
out Of her power either to treat Ksalo as tres
passer, or to claim any right in the crop which
be had raised under these circumstances. She
could not BY sending Kealo away from the land
acquire any title to that crop, even against him,
still less as against the plaintiffs to whom he had
conveyed all his title. Kanui having no legal
claim on this crop, conveyed none to the de-
fendants
Authorities for the above may be found in
Washburn's ResI Prop, led. 1862 Washburn's
Easements, Brownies Statute Of Frauds, TayIOr's
Land. and Tenant, and Parsons Contracts, bat
as understand that the case viii go before the
fall Court on ali these points, do nos review
thsm.
Judgment is ordered for the plaintiffs in the
sum Of one hundred and sixty-tWo dollars and
ifiy cents lsl6250) and costa
ALEEKD s. HARTWErL,
Justice Of he Supreme Court.
Dated HonOluIu, n. l., July IS, 1911