The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1878-07-06
TIE PACIFIC
S4TURD4Y Y, JULY g..
SUPREME COURT OF THE HAWAIIAN
IsLANDS-APRIL TERM, 1873.
c. VAN DYCK HUBBARD
VS..
HENRY MACFARLANE.
HARRIS, c. j., JUDD AND McCULLY, j.. j.
Opinion by Harris, c. J.

HARRIS, Z. d, JUDD AND MCCULLY, 49,.
Opinion By Harris, CO.
This is entitled an action of Trover in which i
was alleged that the defendant had converted t
his own use a packet Of diamonds, consisting O
three studs. one ring and other articles, of III
value in the whole of $4,000.
At the hearing the following statement wa
made by counsel for the plaintiff: That al
though in the declaration, the sum claimed wa
s., 800, from the testimony taken in the morn
ing Cat the bedside of Mr.. Christie, then very
sick) to be used at the trial, he could only CLAIM
the sum of $500.
The plaintiff put in the evidence of Mr.. Chris
tie, which is as follows: " left three diamond
studs with Henry Macfarlane; they were shir
studs. About the 18th of November L left then
with him; they were left to secure Mr.. Maciar
lane on a draft of about $575. L don't ~recollec
whether [ addressed the box to myself or to Mr.
Hubbard they were to have been forwarded tC
Mr.. Hubbard for me, and no one else. L dom
recollect at the time the diamonds were left
with Mr.. Macfarlane whether Mr.. Hubbard was
in debt to me. He had owed me. | received
the diamonds myself afterwards from Mr.. Mac.
farlane. Mr.. Hubbard did not know anything
about the arrangement at the time. L never
conveyed the diamonds to Hubbard. Before
leaving for Japan l spent some time IN San
Francisco and received more money from Mr.,
Hubbard, and whether L gave him my note OF
! any OlIC GblucuCC - il IuQCOIC0LCco " Ailh, Il
don't remember. Cross-examination by-
Il presume the draft was paid by Mr.. Hubbard,
as it never was presented to me; it was my OWL
draft endorsed by Mr.. Macfarlane. l value the
studs at $1,000 but l would not sell them at
$780, and likewise a letter (frOm defendant to
plaintif), which, as far as it concerns this case
is as follows
$50 business now-Chris. having been pushed
for a little money on his departure, l 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, l will
forward the package to you through wells,
Fargo & Co.'S Express"
The defendant himself took the stand and tes-
titled that he never had any conversation with
the plaintiff relative to diamonds. Christie told
me that Hubbard was indebted to him, and he
left the package with me. Hubbard never
claimed the diamonds of me until this suit. l
returned the diamonds to Christie a year ago in
January. John Ii. Patty, of Bishop & Co., stated
that on the 18th of November, which is the day
before the date of the letter above mentioned, he
gave up to Christie, a mortgage OF the p%lalntlf's
in favor of Christie on some property IN Oak
land, California, which had been left at their
bank Bishop & Co. 81, as a collateral security
for the payment of Christie's note of 81, 800,
which note had been paid by Christie. This
ended the case, and counsel for plaintiff requested
the Court to direct the jury that the letter above
quoted was conclusive as evidence between the
plaintiff and the defendant; that the diamonds
were held by the defendant as a security for
the plaintiff; which the Court refused to do,
but instructed the jury that the letter was evil
dence for them to weigh.
To this refusal of the Court exception was
taken.
Now it will be noticed that there is a variation
between the complaint and the proofs adduced by
the plaintiff himself. In his complaint he pro-
ceeds on the principle and on the allegation that
Al I:-.- 800 49, ,loiDEiA"o I N hI0 motion
for Instructions to the jury, he ayers that they
were only held as a security to indemnify a draft
of 1878. In his opening to the jury he claims
that he found from evidence taken this morning
(that of Mr.. Christie) that he could only claim
5000, instead of the $1,000 alleged in the COM
plant, and yet the letter, the subject OF con-
temptation, says, =" have taken his Christie s.
draft on you for 1918" Now, he could have
discovered before that morning that he was only
entitled to 5000, unless he had altered his mind
regarding the nature of the claim. 1t would
appear as though, in the first place, he con.
sidered that he was entitled to the diamonds at
any rate, or to their full value, and atterward
adopted the theory that he only vas entitled to
them as security for the payment Of the draft {;
so it follows that the letter was not SO conclusive
to the mind of the plaintiff himself as to enable
him to form the proper conclusions without tes-
timony and further still, there is no declaration
made upon the draft whatsoever, and although at
luC Ii IL va dOh1IGLS0 ihdb N"O hNAhtAh AlhA
paid the draft, and it was not proved nor at
tempted to be proved, nor admitted that the
plaintiff had been damnifed by the payment of
the draft, it was perfectly competent for defend
ant to try to prove that he paid it from funds in
hand of Ohristie's. The words of the letter re-
lied upon are these, 81 have taken his draft on
YOU for 1915 and holds a security his diamonds,
which are sealed up and addressed to you, and as
soon as the draft is paid l will forward the pack
age to you," Now, it will be observed that he
does not say that be held them as security to
plaintiff, and be offered to prove that the plaintiff
did not regard it so which he did, first, by the
evidence of Mr.. Christie, introduced by the plain
tiff himself, in which he says they were left to
secure MIR. Macfarlane, and that the diamonds
were to be forwarded to Mr.. Hubbard for me
(Christie), and for no one else and the defend
ant supports that evidence by showing that, at
the time Of writing the letter, the plaintiff owed
Mr.. Christie more than $l,5OD, and did not pay
the draft relying on the diamonds and lastly,
that though the draft was paid in due course, the
plaintiff never called for the diamonds, but that
they remained with the defendant until Mr..
Christie returned here twenty-six months after
ward, when they were delivered to him and that,
in point of fact, the plaintiff never demanded
the diamonds or said anything about them to the
defendant from the day OF the date OF the letter,
18th November, 1874, to the date of the COM
mencement of this suit, 18th December, I977-
LlOIC luII tnACO JCdiC' ANO" khSASAOhSS ibuo
much as the letter does not state that the defend
ant held the diamonds as security for Hubbard,
it was for the jury to determine what the force of
the letter was, and whether the plaintiff had been
misguided and had suffered loss by it in the pay
ment of the draft; and it was right that they
should weigh all the circumstances in order to
arrive at a proper conclusion. So that the letter,
as we'll as all the other evidence in the case, was
properly left to the jury to consider.
The exceptions are Overruled.
CHAs. {. HARRIS,
Chief Justice.
LAWRENCE MCCULLY,
Justice of the Supreme Court.
l.. Preston, counsel for the plaintiff.
j. NJ. Davidson and Cecil Brown, for the de-
PENDANT.
DISSENTING OPINION OF DIR. JUSTICE JUDD.
This is an action of Trover to recover the sum
of $4,000, the alleged value of some diamonds
claimed to be the property of the plaintiff.
The bill of exceptions is as follows:
1t was admitted at the trial that the plain