The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1878-06-29

strued literally. 1t means a time not entirely
included in the month of May, or the word
80 about" which is different In effect from - IN
would not have its force. We should say that a
contract to do something about the month
of Nav " would be satisfied by doing 1t IN the
latter part of April or the early part OF June ana
at intermediate times, but we need not declue IL
all June or April might be included by the term
- about . for the execution OF this contract ran
along to the middle of August, which plainly was
not 80 about May" On the contract merely we
do not see why a demurrer to the complaint as
amended by the statement of times OF tender oil
the wool, would not have been good. But we
have to consider how far the parties have placed
themselves under other conditions by subsequent
agreements, admission or conduct, a question:
which rests on the construction which shall be
given to the letters and receipt exhibited ABOVE
Had the defendants waived the stipulation IN re,
spect to time of delivery as to the Whoie GllP' nau
they accepted a part of it 6nally or were lney ma
position at the last to renounce the whole contract
and claim return of the payment OF SoUOU
1t should be mentioned that the memorandum oI
agreement which is the basis OF this action lnciuues
| also - not to exceed 600 bullock hides to be de-
livered throughout the year." and - tallow from
Niihau and elsewhere to be delivered thrOugout
the year. All cash on delivery" From this the
plaintiffs counsel argues that each shipment OF
wool was payable on delivery and that parties
had only pursued the contract by the payment of
June Sth. But we are of opinion that the item of
the clip of wool is to be treated as single and in
| dlVlSlDle. IL Is sofa as amounting 10 q CERTAIN
stimated quantity. 1t is TO be delivered at a spe-
ciic time, " about May" which although giving
so much latitude of time would permit the trans
port hither by successive trips of a schooner. con-
templates the delivery of the whole without delay.
The whole clip must be delivered to the defend
ants. In all these respects, the agreement for the
wool differs in terms from those respecting the
hides and tallow. 1t follows from this view that
the delivery of the wool was not made or rendered
until the tender of the last lot on the 18th of Au-
gust, and unless the parties had mutually consent
ed to modify the terms of the original agreement
or the defendants had waived their right to the
execution of it as specified, there could be no
claim for damages on a contract which the plain
tiff had not fulfilled.
Was there such a modification of contract,
amended contract, or waiver of terms?
Referring to the exhibits we find that the de-
PENDANTS on the Goth of May " decline to receive
the wool at the price agreed upon" May 29th
they write that they will receive the wool which
they had refused TO take delivery of at the stipula-
ted price with the express condition that we re-
serve all our rights growing out of its bad condi-
ton. June Sth. they pay $4,000 on account - with
out any prejudice to any legal right they may
have in regard to said wool" On the 18th of
June, 60 bales are offered and on the 25th June
defendants say they decline to accept any Nlihau
wool unless it be in better order than the lot al
ready sent, which they offer to return and request
the money TO be repaid them which they paid I'M
der protest." and say they have rescinded the
contract. June 9th, they decline to receive more
wool now on the ground, not only of failure in
quality but because of non-delivery within tie
contract time. August 10th, defendants decline
payment for the balance of the clip on the grounds
before given. and demand repayment of the $4,000
with interest.
We are of opinion that the defendants, by these
declarations distinctly repudiated the contract
from the first delivery. By their letters in May
they assent to a conditional acceptance, that is,
they say they will take that portion of the wool If
they can agree upon a price but will not take it
under the contract. They base the refusal on the
ground OF noncompliance with the agreement as
to quality, the only ground which could then be
given, for the time " about May" had not expired
10 preclude plaintiff from fulfilling his contract in
this respect. Their note of the 25th of June still
adheres to the merely conditional acceptance. but
on the 9th June they decline to receive more
wool now and claim the noncompliance with the
time of the contract. The word - more !" has been
held to import the acceptance of a part, but how
was that part accepted? Clearly not accepted in
pursuance of the contract. but taken conditionally,
and to be bought if parties could come to terms.
On the 9th. then, defendants say they will re-
ceive no more on this conditional arrangement
OF a price to be settled IN future. But If the de-
PENDANTS had made no objection on the ground of
quality, to receiving the lot delivered in May there
remained to them their right to r~epudiate the con-
tract for nOn-delivery of the whole when the time
had passed for such delivery.
NO proof was offered that they had waived stip-
ulation as to time of delivery. They had refused
to take it, and offered to return that which had
been taken on the condition that another price
could be agreed on. By the terms of the amended
declaration the contract had not been executed.
We are therefore of opinion that the defendants
motion Tor noE-suit on this ground was good. 1t
would have been otherwise if based solely on
questions resting in the discretion Of the Court.
such as the Judgment of the Court as TO suficiency
OF testimony to go to the jury, a matter wherein
the discretion of the Court NOT he received nv tho
Court in banco.
The authority of Baves V. Shand. House of
Lords appeal cases, vol. 2, p. 455, was very much
relied on by the defendants, and has had great
weight with the Court. It is so recent n ease
June. 1871, and from Such hiUl aufhoritv opd 100
ing on every day business transactions that we
deem 1t well to state it briefly. The action was
upon two contracts, each for 800 tons of Madras
Ttce to be shipped at Madras or coast for this mort
(London) during the months of March and Anril
1874, per ROjdh of Cochin Most of the 6OO TONS
was put on board in the month of February
oill OF ladlng Tor the remaining 1880 bags was
gwen on the Sd OF March, but all xecept fifty baos
had been put on board before that day. In an
action for refusing the rice, the defence was tbat
1T had not been shipped during the months of
March and April and the eminent Law Lords held
that the contract had not been comnliod v;,h
Says Lord Hatherly: at is not the article rice
only that is sold, but the thing that is sold ia tho
article rice shipped in March or April. and the
article rice shipped in February is not the article
which has been purchased by the defendants Tho
danger of rejecting the literal construction &c ~
IRENE because 1t is impossible to know Ali the
causes which may have induced the nersons 20 49,
words into a contract. 1t appears to me that the
defendants could not be obliged to accent a tenSar
OF the 90 bags separate and distinct from the con-
Pdete contFact they mad entered into for the whole
SUI tons, the large bulk of which was shipped in
a different month from that which thew had Con
tracted for, and therefore was not of such a char.
acter as to be deliverable to them in ful6IIment Of
the contract they had entered into.;
The first exception of defendants being fnlIv
sustained, it will not be necessary to consider Thy
others. 1ne
Let the defendants take judgment of non.e,a
A. FRANCIS JUDD.
Honolulu, 22d April, 1878.
Harris, H.
Igave my opinion upon this case very f,lIv nho,