The Hawaiian gazette., 1876-12-20

amount 10 reseiRdne. IS question Of fset for the
jury, Story on Contracts. Section vi.
Let Us apply these praeiples and ftAe insirue-
tSHs to the jury Incorrect IL appears that tho
jary were inssruetsa that the abandonment 0r the
contract uSt be rot only By Delemar or pelenar
and SharrAt,, but By Hehrcs As well. This 10 In
ecrferGty with The idea that the abandonment must
be BY both parties. that Is 70 say. mutual IL the
jury fOd ter valuable consideration. peiensS bad
assisaea his whole interest to Shsrratt. does ne,
Shsrr7ts stanas in pslesAr's plasss Has pelewar
abandoned the eo1trsets did be AsSsa his Interest
in Sharratts 1t be sssigeed bis Interest in il TO
SAarratt these papers wOst clearly say thea be
clearly rot enlv did not abandon the eontrset
but be put it cut Of his power ~ abandon IT, sad u
Hebron agreed 20 take Sharrat in pursuance Of Dele
mars assignment to Shsrrs,t which vas made On
condition that peleusr should be acquitted Of all
sponsihiisy. he (HehrOn) did in conformity With
pelemar's request as eontained ard implied BY the
said assignment.
But again. the Court said that Il for the jsry
to determine by the testimony, whether it is shown
that Hebron ever withdrew FROM the contract Thus
il left for the jury 20 Determine whether he had
rot but the Court remarked that the atuste sale
and deed Of Hebron to Shsrratt showed that Hebron
had rot abandoned the contract The Instruction
might hare been diaercn,ly coached; 1t might have
beea said that the ultimate deed Of HOhron 10 ShAr
rsSt evidence for the jury to consider TO prove
that Hobr0a had not abandoned the contract and
il 20; Only evidence % that description. but very
Dele@ar to Sharrst VI all his rights under the lease
or contract for the of $500 conclusive evidence
that be did not abandon the contract himsefS Where
then IL the evidence that either party TO this contract
aud much less both Of them. ever Abandoned It.
Tie whole sum Of the ease is this. that Deemar
agreed to sell his interest to ShArratt for 81 500
provided that Hobron would release him from past
and future responsibilities, and others would release
bin frOn past and future reSpou disabilities. Hebron
did agree as requested Thep the time for Dele
S,s - ,srtn Of which
be bad advanced towards the purchase IL be intesdsd
to hold HObron tor it. There IS evidence that he
lid SO.
Ana again. for 81. 500. Delsmar assigned to Shar-
all his right. title and interest III the estate.
What all his right title aud interest at the tune
Of his assignment All his right to enjoy the
occupation Of the until the stth day Of Jauu
ary. A. D.. 1879. with the privilege Ct extending to
paid jointly with bis partner $50 600, and complied
with the other conditions to elaim deed. II he
paid Jointly with his partner $50 600. that is 10 say
II bis partner paid $50 900 and he (Delemar) paid
$50 zoe, less $4S IS. with the interest which uigh,
have ae=u ulated on the $S4S IS up to the day Of
rendering the money for the deed. Nor dill il make
any difference 10 Hebron where the money came
from, if Deemsr had teadered hin the whole $50 goo
Say time during the subsistence Of the lease Hob
ruu would have been obliged to have made the deed
aud the question Of the money would have been be-
tween him and his partner Sharratt. matter in
shieh Hebron could have had interest Nor do
the words undivided half' in the receipt make any
diGesenee since by referriug TO the contract, it IS
evident that HobrOn never agreed to sell un-
divided half 10 anybody. 1t would seem that the
natural for Deleuar to pursue would be to
claim and receive the SS43 IS FROM Sharrau at the
tiDs Of bis sale TO him payment made on ae-
count Of the purchase to be carried by Sharratt
who would deal with Hebron accordingly.
Suppose Delemar to have died before the assign
ment. would have bad a right to Interfere
With the partnership concerns. Shsrrats would have
had the right to close up the business. complete the
purchase, and must have been responsible TO bis
partners heirs for all his interest in the
ineludiug this amount paid by bis partner. in part
fa6llment Of the contract Of purchase. and Hebron
would not have been responsible to DelemNrs heirs.
The exceptions overraed.
Gas c. HNRRIS, Justices Of the
A. FRGNcIS JrDD, Sup. Court.
W. c. Jones for plaintiff. A. s. HartRell, W. X.
Castle and W. o. Smith for defendant.
HoLol1la, Nov. 2nd. 1875