The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1874-09-05
SUPREME COURT DECISION.
Before Mr. Justice Harris, at Chambers.
f. p. films IS. Charles r. Bishop 8 Co., Ia
Equity.

wear. male a general assignment to the plaintiff, for
the benefit Of creditors; that on the 2Jth day Of Sep
temJer, 1872, the said Walker & Allen had entered
into agreement with Messrs. Welsh * Co. Of San
Francisco, and Messrs. Welsh, Rithet & Go. Of VIC
toria, 10 consign to them ALL the sugars Of the plan
tations Of which they were agents, for advances made
and 10 be made; and they further aver that at the
date Of the assignment aforesaid the agreement with
Messrz. Welsh s Co. was in full force and effect
The bill further ayers that at the time OF the agree
ment with Messrs. Welsh * Co. and al all times
thereafter up 10 the date Of the assignment by Messrs.
Walker & Allen to the plaintiff, Messrs. Walker &
Allen were agents for Thomas Spencer, sugar planter
at Hilo, Island Of Hawaii, who at the date OF the said
assignment was largely indebted to Messrs. Walker
& Allen. for advances made TO carry on his planta-
ton, and was himself iusolvent; and during Mi this
time 7 Spencer was under arrangement TO conslgn
10 Messrs. Walker & Allen ALL the produce Of his
plantation in consideration Of their loans and adj
vances.
The bill further AYERS that ut the time Of the as
signment the firm Of Walker * Allen was indebted
to the defendant in the sum Of thirty hundred and
sixty-eight dollars and four cents; and on the 9TH
day Of June, that the said Walker Il Allen delivered
TO the defendant a paper writing order or receipt Tor
certain sugars the product Of Spencer's plantation,
which had arrived that day Sunday per steamer
RilGueG; and at 6 o'clock in the morning, on Mon
day, 9Th Of June, Walker & Allen caused an entry
to be made in their books purporting to show q sale
of these sugars to the defendant, for thirty-seyen
hundred and one dollars and fifteen cents; and fur
Their the defendant though requested has refused TO
deliver over any portion Of the sugar or proceeds ex-
cept the sum of six hundred and thirty-three dollars,
which was the value Of the sugar delivered to him
over and above the sum Of thirty-seven hundred and
one dollars and fifteen cents before mentioned. The
bill further AYERS, that the defendants are bankers,
and the purchase and sale Of sugar is not within
their ordinary business, and on the 18th day OF June
aforesaid they were acquainted with the agreements
with Welsh s. Co. and Welsh, Rithet & Co.; with the
insolvency Of Walker & Allen as well as I. Spencer;
and that the sugar was from Spencer's plantation;
that Walker g. Allen were about to assign; and 1t is
further averred that the price at which the sugar
was quilted to the defendant by Walker s. Allen was
very inadequate, and it Is submitted that such trans
fer and taking possession of the sugar was in fraud
Of the rights Of the GENERAL creditors of Walker &
Allen, and void as against said creditors; or was q
means Of securing the defendants in the payment of
n loan or advance OF money made to Walker & Allen,
and therefore in fraud Of the rights OF GENERAL
creditors and void as against them. The defendants
in their answer deny any knowledge of insolvency Of
Walker & Allen, although they admit they knew
that they we're indebted to many other persons.
They say they have no knowledge whether or not the
agreement Of Walker & Allen with Welsh & Co. was
in force at the time of the agreement, and submit
that the insolvency Of Spencer could not affect them,
the defendants; they deny that Walker & Allen were
indebted 10 them, defendants, at the time of the as
signment; say that the sugar was delivered to them
as charged in the bill; and though they are not ac-
cusiomed to buy sugar, they have done so from the
firm of Walker & Allen, and did purchase this sugar
in good faith, and admit that they refused to surren-
der the same; aver that they took and retained pos
session Of the sugar by virtue Of two contracts dated
the 1st day and Sd OF June last, which contracts
read as follows
HONOLULU, june ISL, 1914.
we have received from Messrs. Bishop & Co,
permission to check upon them for cash to the
amount of twenty-five hundred dollars, in payment
for sugar this day sold to them for an equal amount
at the following valuation:
"Viz: No. l sugar in kegs, at Al cents per pound;
No. 2 sugar in mats, 3 cents per pound. to be de-
livered TO them on the return of the steamer
Kilaue1 from Hawaii, within ten days from this
date. The sugar is now made and in possession Of
Thomas Spencer in Hilo, Hawaii.
"(Signed) WALKER d ALLEN"
~ L l...-D a.. .bo ,lora r,o,,, mo ho-a. 10
ceiyed from Messrs. Bishop & Co. the sum of eight
hundred dollars, which amount to be paid In sugars
as above. (Signed) WALKER IL ALLEN.
Honolulu June Sd, 1874"
1t does not appear to me that the lOwness of the
price at which this sugar was quilted is such as to
give any coloring to the transaction, one way or
a cents, and 400 pounds of an inferior quantity
al 3 cents. Mr.. p. q. Jones says, that on the first
Of June, such sugar as the best was worth cash at
5 cents, and he would have given it himself. But
il is said that the sugar was not to be delivered
until the Sth an opportunity for shipment imme-
diately, frequently has great influence, on the price.
Mr.. f. z. Adams (the plaintif) saye; that in his
capacity as q Commission Merchant he offered the
same sugar on behalf Of Bishop s. Co. to several, and
among them Mr.. Jones' firm (Messrs. Brewer & Co..
eight days afterward, and that the best price he could
get, was AZ for the first sugar, and 81 for the second,
which he obtained from Messrs. ii. Hackfeld & Co.;
thus showing q difference Of only a quarter of q cent,
on the largest and most important part of the sugar
under contemplation. This surely is not such a dis
{ Darby as OF lISelI " CIV u IduuulGub COAOE ~ IL
transaction. Mr.. Allen in his testimony says, that
the transaction vas in good faith, and that he did
not give Dir. Bishop TO understand that he was in
solvent, though he told him that he was 'ihard up,''
that is 10 say, much pressed for money, but was in
tending to keep his concern going as long as he could.
The agreement with Welsh s. Co. and Welsh,
Rithet s. Co. offered in evidence by the plaintiff con-
taius nothing of itself to give any notice that they
had any claim on the sugar in question 1t is dated
18th Of September, 1872, and recites that Messrs.
Walker & Allen have the control of the products of
certain plantations, and among them Of Spencer's
.'duriug the years 1872 and 1881 and again, This
agreement shall be in force for ONE year, and UNTIL
the provisions thereof are fully complied with, and
may be continued by CONSENT for q longer period"
Mr.. Allen says that at the time of the assignment of
his firm, they were under contract to ship sugar asin
this agreement set forth, but surely there is nothing
in the contract itself to give notice to any one, that
it had not expired with the year 1873. But suppose
the agreement to be in full force-as Mr.. Allen says
it was,-and that the defendant knew it-which he
says he did MOTT is difficult to see how it would
help the present plaintiff, who acts for the GENERAL
creditors. 1t would simply amount to an agreement
with Welsh S Co, to ship the sugar to them to pay
their debt, and would not insure the delivery to the
general creditors.
II was said at bar in behalf of plaintiff, that it
could not be assumed by the court that the delivery
occurred before the assignment, since they both oc-
CURED on the same day.
But, the whole proof goes to show that the delivery
was made first, and the assignment afterward; as the
deed of assignment was not put in evidence, 1 have
had recurrence to the public record, and find that it
was acknowledged 23rd Of June at 2 O'Clock p. NJ. l
regard the sale to have been complete on the 3rd Of
June, and the weight Of authority goes to that effect.
Spencer had written to his agents that he had the
sugar ready to send to them; they (his agents. sold 1t,
and got the money for it on that day, and Spencer
shipped it according to the understanding. The title
in this sugar was then passed by a good and valid
bargain, which in my opinion would have enabled the
defendant, under all the circumstances, 10 maintain
an action against Spencer if he had attempted to
withhold delivery. At any rate, Spencer's agents did
deliver it, and the money went to Spencer's benefit.
MI IA 500 .Hat tho p,nnA- raa 49, II
vanced on security, and to declare this sale void
/" would place this defendant in a worse condition
than any other bona ride creditor" since on the day
of the sale he was not a creditor at all and did not
intend to become one.
Again, the sugar was in Spencer's possession.
and If be had failed to ship it the respondent could