The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1878-06-29
THE PACIFIC
GommertlalA0bertlse
SATURDAY, JUNE 90.
SUPREME COURT OF THE HAWAIIAN
ISLANDS-APRIL TERM, 1878.
HARRIS, c. j., JUDD AND McCULIY, j. j.

II. dACRFELD " 90.
HARRIS, c. j., JUDD AND McCULLY, j. j.
Opinion of the Court By McCuAy, j.
This was an action of assumpsit on a contract
to sell defendants the whole OF the clip OF Wool
from the Island of Niihau, estimated to be about
220 900 pounds, to be delivered IN Honolulu
about the month of May 1877, in merchantaole
condition, at the price of 123 cents per pouno
net cash to be paid on delivery.
The clip amounted to 229 $40 pounds and was
rendered in the following quantities at these sew
eral dates, viz: May Goth, SO bales; May 18th,
46; June 10Th, So: July 10Th. 60; July 9th, 80;
July ODD, II; and August 14th, II bales, OF
which the defendants received the two lots dellv-
cred in May and paid therefor on account SoOOO'
The agreement under which so much was re-
ceived, and the further dealings of the parties
will appear from the following exhibits OF CORES
pondence and receipt:
Hackfeld & Co., to T. ii. Davies, May &c,
lS77.-'' When we purchased from you in JAN
uary last the clip of Nilhau wool for this year,
we based our calculations for the purchase price
upon our knowledge of the quality of the wool,
as we had received it in former years. But up
on examination of the first lot of the clip which
arrived yesterday per Marion, we found the
wool extremely bury, very much more so than
the former lots received, and the wool cannot be
called in merchantable condition as compared
with the former clips. If it was only a little
more bury than formerly, we should not say
ANYTHING about it, but the state the wool is in
renders it quite a different class of wool from
what we had a right to expect. We must there
fore decline to receive the wool at the price
agreed upon, but shall be ready to confer with
YOU upon a fair reduction, if that is agreeable to
Mr.. Sinclair, as we suppose it will be, knowing
the condition of the wool as regards the burs in 1t. ="
Hackfeld & Co., to T.. H.. Davies, May %,
1S77.-sE Referring to our respects of the 26 inst.
in which we drew your attention to the extreme
bury condition of the Niihau wool received ex
Marion, and refused to take deLiUery of The same
at the stipulated price, we now say that an order
to facilitate the transaction we will receive said
wool, but oCiM the erpreSs condition that aUe re-
SerUe all our rights grO,Cing out Of ats bad condi-
ton. We trust that Mr.. Sinclair will accede to
a proper allowance in price and We are ready to
make a sacrifice-in an amicable adjustment"
Receipt of T.. II. Davies of June s, 1877, for
SS000.-" Received from Messrs. Hackfeld & Co.,
the sum of Eight Thousand Dollars on account of
wool delivered against their purchase of the Nil
hau clip. This payment is without prejudice to
any legal right they may have in regard to said
WOOL"
Hartwell, Attorney, to Davidson, Attorney,
June 25th, 1S77.-s'M essrs. II. Hackfeld & Co..
decline to accept any Niihau wool unless it be in
better order than the lot already sent them
(Which they hereby offer to return, and request
the money to be repaid them which they paid
under protest;) their reasons being as already
stated, that the wool is so far deteriorated, by rea-
son of burs, from former clips of Niihau wool
sold to them. that they regard the contract as
not carried out on the part of the seller, and
therefore they have rescinded the same"
Hartwell, Attorney, to Davidson, Attorney,
June 9th, 1S77.-''I am instructed by Messrs.
IL. Hackfeld q Co., to inform you, that apart
from and in addition to the reasons already al
lodged by them for declining to receive NiIhau
wool in the condition Of that already presented,
they decline to receive more wool now, for the
reason that the bargain and sale memorandum
note required the wool to be delivered about the
month of May, which has not, except the lots re-
ferred to in former letters, been DONE"
Hackfeld & CO., to T.. IL. Dawes. Aug. 16,
1S77.-'' In reply to your letter of yesterday s
date, we beg to say that we decline to pay your
bill of $21 ,612.73, for 1862 bales of wool, being
this years clip of the Niihau wool, for the rea-
sons already fully set forth to you. We again
call your attention to the fact that wool which
by this agreement was to be delivered to US about
the month of May, is not until now, the middle
of August, rendered, except as to the lot rendered
and refused last June.
We hereby decline to receive this wool for the
reasons above referred to, and we request you at
once to repay to us the amount Of S., 900, (and
$l34, interest thereon,) being the sum paid you
by us June 9Th last, without prejudice to our
rights as then claimed to dIsavow the contract
At the last January term, the view of Chief
Justice Harris holding the Court was, that the
defendants had finally refused to take any more
wool than that which they had received, but that
this had been accepted, although conditionally as
to price. Evidence went to the Jury that it was
- in merchantable condition. - and the Jury was
instructed that if they found that fact, as it was
the only contract description of quality, they
should give the plaintiff at u! cents per pound
for the quantity delivered, that, admitting that
the delay in delivery was not a breach of the con-
tract, il was necessary for the plaintiff to prove
his damages, and he had made no attempt to
prove any, and that therefore none could be pre-
sumed, and their verdict as to damages must be
only nominal, and that if they should find that
the time had elapsed during which the wool was
to be delivered, they could give no verdict at all,
beyond what was remaining due on the wool de-
livered in May Nevertheless the Jury rendered
a verdict for : the full amount of the contract as
claimed, which has been taken to be a verdict for
the sum of $25 900, claimed as damages in the
PLAINTIFFS complaint. This was set aside as ex-
cessive and contrary to the instructions of the
Court, but with permission to the plaintiff to
avoid a new trial if he should file a remittitur of
all the damages above 1906 (S8695 being the
amount of the wool delivered, at I2a cents. of
which sum $4,000 had been paid) which the
plaintiff did.
Defendants exceptions allowed at the trial.
were as follows, viz To the instruction to the
Jury, that, 50 if the wool is shown to have been
merchantable, which is still held by the defend
ants, they are liable for the difference between
the $4,000 paid and the agreed price, or $685.,
the evidence as to the holding of this wool being,
that it is held under an agreement, as shown bv
the exhibits" to the refusal of the Court to
order a nonsuit on the following grounds, to wit:
LIST. That the evidence did not show delivery or
offer to deliver as agreed, the evidence being that
it was rendered at the times and in the amounts
above stated. I'd. That there was no evidence
that the wool was in merchantable condition
when rendered, the only evidence relied on by
the plaintiff on that point being, the evidence Of
Mr.. Sinclair. Sd. That there was no evidence of
the market value of the wool at the time of the
alledged breach of the agreement, it being true
hat there was no evidence on that point.
Upon the exceptions coming before the Court
in banco, it was commended on the part of the
plaintiff they are irregular because no exceptions
were taken to the decision of the Chief Justice
giving plaintiff the option to remit the excess
above $685., or take a new trial, and that he