The Hawaiian gazette., 1880-11-10
8awaiialr 6agette.
WEDNESDAY, NoMEMBER 10. lsso.



There Is very important lawsuitin progress
in Newborn, n c., observes the N. I. Times,
which will be watched with interest by the le-
gal profession in all parts Of the country.
Some time ago Mr.. Finch, Of Newborn, who is
in the iewelry business, exhibited to Miss
Waters. young lady with whom he was on
friendly terms, beautiful sci Of real jet. The
lady was very anxious to own the set, but was
not able to buy it. In these circumstances
Mr.. Finch proposed novel kind Of bargain
He said he would sell Miss Waters the set for
100 kisses, to be paid at the rate OF one kiss
daily on each and every day next ensuing from
the day of the date Of the agreement, except
ing, nevertheless, each and every Sunday
thereafter 1t was further provided that Mr..
Finch was to call at the lady's house every
morning, except Sunday morning, TO receive
his daily kiss, which Miss Waters undertook
and promised to duly deliver to him. Tins
contract was not reduced to writing, butt was
fully understood and agreed TO by both parties,
and the set of JET vas rendered TO Miss Waters
and accepted By her. The next morning M.
Finch called on Miss Waters for his hrst KISS,
which, as the young lady now maintained, was
fully paid. On each subsequent morning, 80
consecutive days-Sundays exeepted-the
same proceedings were had. On the 3lst day,
however, Mr.. Finch made q formal complaint
that Miss Waters was not fulfilling her con-
tract. inasmuch as she insisted upon permit
ting him to kiss her cheek only. He main
tanned that this did not constitute legal kiss,
and be demanded that he should be allowed 10
put bis left arm around Miss Waters waist,
and kiss her in the highest style OF the art
To this request a firm refusal was returned
The lady prufessed her willingness to carry
out her agreement SO Ear as her cheek was
concerned, and even offered to give Mr.. Finch
his choice Of cheeks, but she insisted that the
contract would not bear the construction put
upon it by Mr.. Finch, and that she would
never submit to such construction. There
upon Mr.. Finch, in great indignation, Drought
an action for breach of contract against Inc
lady. This action raises several new and In
teresting questions, among the most important
of which is, What constitutes, in the eye OF
the law. kiss The testimony of several
experts is to be introduced by the plaintiff;
but, although all those experts will probably
start out with the assertion that kiss Is that
which is impressed by one pair of lips upon
another pair, they will subsequently be impel-
led to admit on cross-examination that one
pair of lips alone may imprint kiss upon an
accessible object. This seems, at first sight,
fatal TO the plaintiff claim that the defendant
did not furnish him with lawful current kisses,
but it must be noted that be sets up the further
plea that there is a difference between active
and passive kisses; that Miss Waters pro-
missed to give him certain quantity of kisses
not to permit him TO take them and that
giving kisses is an act which requires the use
OF the lips This is certainly strong point,
and though the Court may decide that there is
no one variety Of kiss which can be held to
be the only kiss known TO the common law, it
may give an authoritative definition of an ac-
tive kiss which will be of immense service TO
mankind. There is still another defence upon
which the defendants counsel is understood to
place great reliance. 1t is claimed that even
if there was a valid contract between the par
ties, and if the defendant did break it, the
plaintiff proper remedy is not an action for
breach of contract, but a bill in equity for
specific performance. Probably the plaintiff
would have been wise had he resorted TO the
latter course. In case of his success, he would
then have received specified quantities of def
mite kisses of one kind or another, and would
thus have gained substantial victory. As
il is, his triumph in his action for breach of
contract would doubtless bring him only a
nominal sum by way of damages, and would
render it necessary for him to institute fresh
proceedings in order TO gain possession of the
jewelry. Still, it by no means follows that
because he may have remedy in equity lie
has no remedy at law, and it is reasonably
certain that if there was q contract between
himself and the defendant an action for breach
of IL will lie