The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1876-05-31

The first point made by the respondent appel
liant was, that as this appeal was not perfected
until after the opening Of this term, it could be
required uDdeT the rules to be heard at this term
The court held that appeals (undeF rule W. per-
fected after the opening Of the term, would be
heard at the same term, provided there remained
sufficient time, and 70 good cause was shown why
the appeal should go over This case not being
within the exceptions, the appeal was heard.
The next point was, that this appeal is to
the full court in bancO,' under sec. 859 Of the
Civil Code. which by sec. S2T consists of three
justices.
The court held that the decision made some
years ago by the bench consisting of three justi-
ees, to the effect that Judgment of two iusti-
ces was constitutional, was binding upon the
court 10 banco as at present constituted.
The third point made is. that the bill aTers
that the plaintiff offered for sale the " lii of Pa
pOhaku by acres, and the respondent became
the purchaser Of the said Iii containing 2345-lOO
acres. whereas the proofs show that The plaintiff
was licensed by the probate court TO sell all the
right, title and interest Of said W. II. KaauwaI,
deceased. iE and to the Iii Of land known as Pa
pohaku" etc. and that the plaintiff offered the
Gland 10 Pspohaku. leased to g. Armstrong"
etc, and it is urged that the plaintiff sold what
the court did not authorize him to sell and the
whole sale is therefore void
1t is in evidence that poster was put up at
the place Of sale, recting that the plaintiff as ad-
minislrator OF w. II. Knausai, deceased, was IL
censed to sell the right, title and interest of the
said w. H. Kaauwsi. deceased, in and to the Iii
Of land known as Papokaku. situated at Waikiki,
Maui, to WITT" -Four parcels Of land. lst-2
chains and fathoms square; ID acre and
square chain 3d--lL acres 4th.-I4 acres, 8
chains and 100 fathoms square, These printed
conditions OF sale, (beDg thus posted at the place
OF sale. and therefore brought TO the knowiedge
Of the yendee.) form part Of the terms Of the
contract and are binding upon the parties. Story
on sales, sec. 1853
The respondent cannot say that the estate Of
ferred vas not offered as the right title and in
terest Of Kaauwai in and to the land known as
the lii Of Papobaku," for it was distinctly so de-
scribed in the poster which brought him 10 the
place Of sale at the time. Bat parole testimony
was adduced apparently without objection, 70
vary or restrict the description Of the estate Of
feTred, BY showing that the plaintiff who also
acted as auctioDeer, stated that the land offered
foT sale vas leased to @. Armstrong
1t would seem as II this statement By the aue-
tioneer was supplemental to the description on
the poster in order TO give greater certainty, or
with the object Of warning The p1rchaeer OF the
membranes and that be could not obtain imme.
date possession Of the land although the sale Of
the right, title and interest Of KaauEai 10 the
land would convey to the purchaser only Ksau-
Eai's interest as Lessor.
The general doctrine is sound. that the printed
conditions Of sale cannot be varied or. contradic-
ted By parole evidence Of verbal statements made
By the aueiiOneer ct the time Of sale. except for
the purposes of proving fraud. (Ses Story o.
contracts sec- 463 and cases cited.) This state
ment however. does not contradict the poster,
and as il may have bad the effect Of making bid |
des believe that less quantity Of land was pat
up than the administrator was licensed 70 sell, |
We must treat the statement made 10 that way, !
md We conclude that the administrator offered tho