The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1878-07-06
ward the package to you through Wells, Fargo&
Co. s Express.-Faithfully yours,

Maid the draft that the defendant kept the dia
monds IN Honolulu, aud finally delivered then L
Mr.. Christie. shortly after his return to TINS Ming
dom, about January, 1917. 1t Is Claimed, on III
part of the plaintiff. that the defendant Is pre-
| cluded from showing that the subject matter Q
the action (the three diamond studs) was deposited
with him for a different purpose than that stated IL
the letter above quoted, contendlng lor the Fuit .
law that :" where one by his words or conduct Will
fully causes another TO believe the existence OF
state of things. and induces him TO ACT on tnat De
lief so as to alter his previous position, the former
is concluded from averring against the other a Oil
ferent state of things as existing at the same Time
(Pickard VS.. Sears, 6 Ad. Il Ell, 469)
This Iule of law is not controverted by the de-
PENDANT, but it is said % that the letter IS not a
statement sufficiently explicit and clear to induce
plaintiff to believe that defendant held the dia'
monds as security for him (plalntlt); and ~ tnal
the other facts in evidence rebut the idea tha'
plaintiff acted upon the statement IN the letter IN
paying the draft.
The essential ingredients OF an estoppel by con
duct or in pals are laid down as follows by this
Court, in Kamohai VS.. Kahele, 3 Hawaiian. $50:
In order to an estoppel by conduct, there must
have been a representation, or concealmeht' Vi
material facts. known by the party to exist, and
with the intention of inducing a party ignorant OF
the facts to act upon the representations
The representation in this case was made by the
party who had endorsed the draft to the party on
whom it was drawn.
The representation made by defendant to plain
tiff was :. | have taken his draft on you for $575,
and hold as security his diamonds, which are
sealed up and addressed to you and as soon as
the draft is paid | will forward the package to you
through Wells, Fargo d Co.'s Express" 1t must
be remembered that this was the letter advising
the drawing of the draft, and was addressed to the
person upon whom it was drawn, and who the de-
PENDANT expected would pay it. Defendant says
he held the diamonds as " security, " not sayingfor
whom, but in this connection they may fairly
mean as security for himself, for his own endorse
ment of the draft. But why did he say that the
diamonds were :" sealed up and addressed to you "
(the plaintif), and that he would send them to him
as soon as the draft was paid, unless to induce
plaintiff to pay the draft, and thus relieve defend
ant of his endorsement? If the diamonds were to
be sent TO plaintiff merely as the friend OF the
owner, Christie, and to be passed over to him by
the plaintiff, then the writer of the letter was
bound SO to represent it to the plaintiff.
The defendant knew the real facts of the case,
and the plaintiff was Ignorant of them, for fromall
that appears, the only knowledge he had of them
was from the letter advising the draft.
1t seems to me that facts so important TO the
drawer of a draft, that some diamonds were held
by the person who had endorsed the ORATOR
- taken'' it. as he says-sealed up and addressed
to him, with a promise that he would forward
them to him by express as soon as he paid the
draft, were made, not as a mere item of lnelli-
gence without special significance, but with tie in
tentiOn that the plaintiff should act upon this infor-
nation and pay the draft. But it is said that as
the evidence shows that plaintiff had previously
mortgaged some property IN California ID Mr..
CDrlStle, winch mortgage Dau Deen uS6u Dy Inn as
collateral at the bank tor a loan of $500, this
must be admitted as evidence to show that when
plaintiff paid the draft he did so because he owed
the amount of the mortgage to Mr.. C., and was not
induced to do so on the representation of hacfar-
lane that he would send the diamonds to aim as
soon as the draft was paid.
But the mortgagor of land is not bound t, honor
the drafts of his mortgage. We have no proof of
the amount OF the mortgage, or whether 1t was
due. or especially whether plaintiff then knew that
it was still in Christie's hands, so that be ould be
assured that the amount of the draft, if he paid it,
would be endorsed as a payment on account of
the mortgage.
We do not know whether Mr.. Christie nay not
have drawn other drafts on plaintiff, and We have
Mr.. Christie's own statement that he did uot re-
member (being extremely feeble from marital dis
ease) whether at the date of the draft Hubbard
was owing him or not, but that he had owed him,
and that when in San Francisco he had received
more money from him.
1t is certain that Macfarlane did not take The
mortgage as security for his endorsement Of the
draft.
But as this letter of the defendant works an
estOppel. it precludes him from showing a state of
things Inconsistent from those represented in the
letter 10 be true. Ii it be true that Nacfarlane
held the diamonds merely for his owl security,
and it was intended that he should pass them over
to Christie himself, or to Hubbard for Christie. he
is precluded from showing it now, for f he made
the representation to Hubbard, and Hubbard
acted upon it, he must make it good, ifhe knew it
to be false.
In Stonard VS.. Dunkin. 2 Campo. 34z, the plain
tiff gave in evidence an order from Knight to de-
PENDANTS, who are warehOusemen, to hold the malt
on the plalntlnS account. Il written acknowledge
ment from the defendants that they held it on the
plaintiffs account, and that he had advanced
e. 800 to Knight. for which the malt was to be a
security. Lord Peterborough said, " Whatever
the rule may be between the buyer and seller, it is
clear the defendants cannot say to The plaintiff.
The malt is not yours after acknowledging to
hold it on his account. By so doing, they attorned
to him, and l should entirely overset tie security
of mercantile dealings were l now % suffer them
to contest his title
By 4 parity of reasoning, 1t is net now compe-
tent for Mactarlane to say that he did not intend
to send the diamonds to Hubbard when he should
pay the draft.
So, in Knight VS.. Wifen, 5 Law R. B. eco, the
had stated to a station-master that "a
transfer of barley (his property 10 L purchaser
was " all right" and that he would deliver it
when the staton-master got the forwarding order,
Lush. j., said " | also think the palntiG is en-
titled to judgment on this short and Ineligible
ground. supported by sound reason and all the
authorities, that the defendant, by What he said
to the station-master, assented to the transfer, and
the plaintiff to believe that b, would hold
the barley to his order.'
1t is said, however, that Macfarlane did not IN
Hubbard to act upon the representation in
the letter that he had the diamonds sealed and ad-
dressed to him, and that he would send them to
him when the draft was paid. But il Freeman vs..
Cooke, 2 EXch. 654, Parke b., in commenting upon
the rule in Pickard VS.. Sears, says: By the term
however, in that rule, we must under
if not that the party represents that to be
true which he knows to be untrue, al least that he
means his representation to be acted upon.
md that it is acted upon accodingly and
i, whatever a mans real intention nay be, he so
conducted himself that a reasonable man would
the representation to be true, and believe that
1 was meant that he should act upon it, and did
let upon it as true, the party making the repre-
would be equally precluded from con-
esting its truth"
1t seems to me that a reasonable man would
lave been induced to believe that the representa-
ion that the diamonds were In Defendants hands,
ealed and addressed to plaintiff. and that they
would be sent to him by express as soon as the
lraft was paid. was made with the intention that
lie should believe that the diamonds were to be
in order that plaintiff NIGH have them as Sc
.urity for his payment of the daft, and that it was
Intended that he should act uIon this assurance
md pay the draft.
Whether the acts or admissions shall operate By
way of estoppel or not where tie facts themselves
ire not controverted, is a Eadter of law for the
Iourt to determine.
This %estoppel. if created at Ill, was created by
he letter, and its construction properly is a ques-
ion of law for the Court. (Sse Kamohai VS.. Ka-
above quoted, and Manng VS.. Cogan, 40 n.
/. 331.)
In my opinion, therefore. tie presiding Justice
hould have charged the July that the letter of
defendant precluded him from showing that he