The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1880-09-04

ROAOAOAOs
Before Harris, G. j., and McOt4y, j.
Mr.. Justice MoCULLY delivered the opinion of the
Court.
ala, claims to set-of E138 90. (being $69l 25) %
his commissions on 81, JOG q. for agreeing to endorse
or accept bills under the following agreement =
Honolulu, May 2, 1877.
"This is to certify that 1. Chung Fsa, of the city
of Honolulu, general storekeeper, do hereby agree to
endorse bills to the amount Of about eight thousand
dollars more or less, drawn by His Majesty King
Kalakaua, of the Hawaiian Islands, in favor of s.
Hofnung & Co., Sydney, Australia and. further
more. do agree to duly endorse the said bills on
aforesaid city. in consideration Of receiving twelve
twelve and Q half per cent. for guaranteeing the
said amount and further agree that he will take
all goods sent him BY the said firm.
witness to signature (Signed)-F. A. ANDER-
SON." t
The matter now for the consideration of tho Court
appears from the following extract from the PLAINTIFF
bill of exceptions -
"On behalf of the plaintiff. F. A. Solomon testified
that he is an agent Of the plaintiff, and that he was
in Honolulu in February, 1878 ; that at that time
the goods ordered by His Majesty had been received,
but were not delivered, and the sale not completed /;
that he did not see the King in person, but did see
Governor Dominis, the Kings Chamberlain the
goods were not received by him., and in consequence,
the goods were sold by the witness 70 II. A. Wide
mann that a. the sale to His Majesty was never
contaminated, no drafts were accepted BY him, and
none were presented to the defendant for his
guaranty, and in fact the defendant never did
guarantee or endorse any bills for the plaintids."
The presiding Justice thereupon instructed the
jury that. upon the ~pleadings and evidence. the
defendant was entitled to the set-of claimed By him,
and directed them to bring in Q verdict for the
defendant to which instructions, and the verdict
consequent thereon, plaintiffs excepted.
Exhibit &C" is an account from the plaintiffs,
dated Sydney. September 20, 1877, ~crediting de-
PENDANT :-"By commission on 81 ,106 g.. % per
arrangement, 418S s."
Castle and Hatch. for plaintiffs This was 9 con-
ditional contract, to become binding on the defendant
on the acceptance of the drafts. That event never
happened. The sale for which the drafts we're to be
payment was never completed, the goods were never
delivered, the principal never became liable, there
fore the surety never incurred liability, and IL
entitled to no commissions. He could only recover
commissions after the sale was completed, and altar
his own liability attached. It il essential that there
should be some one liable Is principal. Not neces-
sary that the person to whom the guarantee il given
should bind himself to supply the goods. The con-
tract would become mutual after the delivery Of the
goods, and unit. then il was incohate, and in the
power of the plaintiff to complete it or not. Citing
Us;t' =. o. To Sal.1asa.' P b. ~ nd i1 w.. .' ass s4 ; Norton asaa, :.
Brown, A and E., 10 Oxford '. Davis, Lsngdsn's
Select Cases on Contracts, ?. ~ Smith on Con-
tracts, p. SO. a
HartEell. for defendant : By the original ssree-
ment, the defendant was entitled to bis commissions
whether be should be called on to endorse bis
Msjesty's acceptance or not. An agreement to
endorse makes one liable precisely as If he had
An endorsement of the Kings paper
would make the endorser liable a. an original pro- !
nilsson or maker Of the note, or a. purchaser, for the
King cannot be held responsible. The confederation
of the PLAINTIFF agreement to pay commissions was
the defendants agreement to endorse bills il pre-
sented. The defendant 10 not in default, and can
hardly be argued that he was to earn his commits
sions only on payment Of the purchase money. There
was no proper tender Of the goods. 2. The de-
PENDANT 10 entitled to bis commissions on the ground
Of account stated, and credit actually given him.
The plaintiff agreed to pay the defendant his CON-
missions for agreeing to endorse bills il presented.
10 still liable. and will continue to be liable on
that agreement If the bills should be presented.
Citing Langdell's Contracts, PIP. 170-17e ! 2 Chitty
IN Pleading, 80 4; 2 Greenl. Ed, SEQ. l27 /; Brownies
Stat Frauds, SEQ. ia dSslEyn's Mai Prius. .. ca.
By the CoURr by the last clause in the agree
nent, the defendant Was bound that His Majesty
take all goods sent him by the plaintiffs 20
he extent presumably Of $4,000. The plaintiffs
sopld have held the defendant for the invoice IN
question. less his commission. Having the gusrsn-
ee that their goods sent would Be taken, and bills
ndorsed BY the defendant, they rightly entered
COMMISSIONS to his credit, the Defendant heina 70
ponsible for the sale and payment, There 10 no
o9bt that, If His Majesty had paid cssh for the
GODS, the defendant weuld be entitled to his oom-
aission without having endorsed Q bill, and without
risk. The agreement yss In the nature
7 insurance, the premiHm Of which Il paid, loas or
o loss If the PLANTING agent saw ct to dispose Of