The Hawaiian gazette., 1876-12-06

log COultdct SHOULD eueCttu. = r. 4 . Il
There was no appesl taken from the decision
oveffulingth demnrrer. nor was the question Of
Jurisdiction raised again in the answer but as 1t
has been made point in the appeal, we will
consider it.
1t is said that the compliments will have an
ample remedy at law. This case differs essen.
TALLY from bargain TO deliver 80 600 pounds Of
rice. lfit is contract at all, it is contract 10
deliver the whole of certain crop, whether it be
more or less. The plaintiffs had no means oil
iascertaiDing either the quantity u quality until
it shall have been harvested. But they learn
that the defendants win not deliver it, aud hath
good reason TO believe that they intend to de-
liver it TO some one else they therefore, pray
for an i1junctouto forbid their delivering il to
hothers. They had means OF knowing what
1.-THE price would be ut the time OF delivery and,
relying on the rontract, have recohtracted to de-
liver it to another, and had no means Of ascer-
tanning what they would be Obliged to pay for
noncompliance with their own contract to de-
liver, and therefore caiul The specific lnlfllment
of their contract. y II Is against Conscience that
a party should have the right of election whether
| he shall perform his covenant or only pay dam
! ages for the breach of it. But there is no rea-
sOuabe objection to allow the party who is to be
! injured by the breach TO have an election either
to taketiamases at law or to have a specific per
! formance in equity. The remedies are concur
! rent, but not co-extensive with each other. The
question is therefore ei the convenience Of leay
| ing the partyto his remedy in damages at law
where that will give him full and clear com
peusatOn,' (SlOry's Equity Jurisprudence, p.
No If therefore there is any doubt whether
plaintiffs would have adequate remedy at Jaw,
there eau be no reason why the defendants
should not be required IN equity TO perform their
contract.
These plaintiffs have shown, as is set forth
above, very good reason TO believe that they
would not have an adequate remedy. certainly at
the time OF commencing these proceedings, and
that, too, exclusive OF their averment that the
| defendants would be pecunarily unable to re-
spond in damages, if this crop of rice should be-
Gene unavailable as it probably would be before
final Judgment could be reached, unless they
are restrained by injunction from disposing of it.
1t will be observed in passing that, in this case,
the injunction and the necessity Oft involves
the whole merits of the case, and therefore
would dispose OF the question OF Jurisdiction
eifectually CORRESPONDENTS eau have no reason
to complain of being required to keep their con-
tract. Since in their answer they aver that, in
their refusal, they are not actuated by the desire
to obtain IA higher price for their rice, but By o
fear that they would not get the money tor it,
which fear is based on some previous trans
action with one of the plaintiffs now by the
tenders by the bill, and in open court as well as
Icy the decree. they were rendered absolutely
secure of their money @ ..a.a
The fact is that the answer is not in good
faith in this respect, for if it were. on being
cured beyond question: they would cease to DO
ject.to the performance Of their contract. BY
their answer they admit that they declined TO
take the guarantee of Messrs Chulau & Co., q
4 l..
suggesting any other, and they moreover knew
of the previous transaction with the plaintiffs q 8
well 90 the day of accepting their offer the
day when they avered that they would not de-
liver, and rice had, in fact, advanced in the
meantime.
Bat the respondents say that they did not
contract, but only agreed that they would con-
tract, and when the contract was sent to them,
the terms we're varied. Their letter of May 81
in the Hawaiian language translated, reads as
follows
"AHuNA,-0ur rice is sold to you and Alona,
at the price Of 81 90 per 100 pounds, $500 to be
paid in advance. the balance at five months. Do
you write covenant for the rice, binding the
names of Aloha and your own write first your
name, and il we see that the paper is not written
properly, we shall refuse it. The five months
covenanted shall begin on the LIST day of July,
and the aforesaid $500 to be paid in advance on
the first day of July Of the present year.
We the company whose names appear below,
(SigDed) j. NJ. KANAHIKAUAsl Chinese
(Signed) S. KAMMANU, characters
Certainly this shows an offer and the complete
acceptance Of it The whole rice is sold for an
agreed price and terms it requires no other
names than the plaintiffs it tells them to write |
a paper binding themselves. 1t does not require
any surety, or any agreement to be signed by |
both parties. and merely says thatif the paper
is wrongly written they will not accept it, which
is the same thing as one agreeing 20 buy house.
and the seller to make deed which the buyer !
reserves the right TO refuse, if it shall not be
well drawn. Wherein does this fail of complete
ness of contract? Not at all and if they did |
not like the form of plaintiffs reply (agreemenl) |
forwarded in obedience to this letter, it WAS |
their duty to point out what fault they found |
with it, -5
The paper that was sent is in the form OF q |
mutual agreement, which was certainly unneces-
sary. aud indicates misappreheusiOn of the re-
quirement Of the letter, but at the same time is
none the worse for defendants. Is reads as fol-
lows
-. NJ. Kauahlkaua and s. Kaamauu, AMI
Leyoun, Of Puheemiki. Island of Oahu, II. l.,
agrees TO sell and deliver to Ahuna aud Aona,
of Oahu, aforesaid, $4,000 pounds more or less
VI
growing crop about TO be harvested. on or before
the lat day of August, A. D., 1876. And the
said Ahuna and Alona agree to pay for the said
paddy one dollar and ninety-fve cents Isl 95)
per hundred pounds; $500 to be paid in cash on
the LIST day Of July. 1876 and the balance to be
paid FIVE months from fret payment, the said
Ahuua and Alona giving note for said balance,
after the amount shall have been ascertained, by
The delivery of said paddy.
Done at this duy OF June,
A. D. 1876.
" Witness :"
On Of the variations indicated by counsel is
bat 10000 pounds is mentioned in this agree
nent and is not in the latter. But it says
more or less" being the growing crop, and is
n fact no different than if it had said the grow
ug crop estimated at $4,000 pounds" The
,ther variation is good clean. merchantable
,addy'' which words are not in the letter. These
words are mercantile phrases, and in this case
near nothing further than that the paddy is to
,e well thrashed out and wnnowed or in other
words they are to pay for paddy and not rice,
traw or chaff. and il defendant did not like the
words he might emily strike them out.
g'hon ,ba lattar of Nav 9th cnnstitutas tho