The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1881-03-19
TIE PACIFIC
GommertlalA Obert1ser
SATURDAY Y, MARCH 10, 1881.
Supreme Court of the Hawaiian Islands
January Term, 1881.

january 1erm, 1901.
Harris C. j., Judd and McCuHy j. j.
Andrew WEIGH VS. Thomas Spencer. In Banco.
Opinion IF the Court by Judd, j.
At the January Term of this Court, 1881, the
! plaintif Andrew WEIGH, who is a commission
merchant in San Francisco, doing business as
| WEIGH & Co., brought his action against the
defendant Thomas Spencer, who is a sugar plan
ter of Hilo, Hawaii, to recover the sum of
ninteen thousand eight hundred dollars, being
the amount of principal and interest on two
promissory notes, each for five thousand dollars,
dated at Hilo, October LIST, 1872, payable one in
| sixteen months, and the other in two years, with
interest at one per cent. per month, to the order
of Messrs. Walker & Allen, and expressed to be
for indebtedness as per a mortgage dated July
LIST 1871, given to Walker & Allen. The Notes
were endorsed by Messrs. Walker & Allen, and
were secured by an assignment by them of the
mortgage referred to, to the plaintiff. The
defendant plead the general issue and the
statute of limitation.
To this, the plaintiff hled a replication,
setting ND, that within six years last past. TO
wit. in the years 1875, 1877, 1873 and 1879,
defendant had paid to the plaintiff on account of
the notes, various sums amounting to So, l41.4l
and also, that by an indenture made within
six years last past, to wit, on the 18th
February, 1879 the defendant acknowledged
said indebtedness and promised to pay the same,
and also by an indenture dated the llth Sep
tember, 1877. And further, that the notes
declared on, are secured by a mortgage executed
by the defendant, which mortgage was foreclosed.
and the premises conveyed were sold by order of
Court on the I'd August, 1880, and that six
wears have not elapsed since the foreclosure.
An examination of the facts of this mortgage
shows that many notes were secured by the
mortgage, having priority in the order in which
they were mentioned in the mortgage. DIR. j. 5.
McGrew held several Of the notes which had
-..o,.k, ~ kho nOfaS hold hu tho praSpnf nlaIn-
tiff, and he foreclosed the mortgage in May last
and on sale the premises did not realize sufficient
to pay his claim.
a r~eioinder was filed by the defendent, to the
effect that the payments alleged in the replica
ton, were not made on account of the notes
that the indenture of February 18th, 1875 was
never executed and delivered, and that the
plaintiff never became a party to this indenture,
and since it's date repudiated it that defendant
was not a party to the indenture of the 18th
September, 1877, and that the decree of fore
closure is s'reS inter aHOS acta,' and has no
effect on the notes. The case went to trial, and
the jury rendered a verdict for the plaintiff for
the sum of 81 ,729.85.
The Agreement of the 18th February, 1875,
in substance recites, that the plaintiff holds two
of defendants notes each for So, 200. dated
October, LIST 1872, and which were then with all
the accrued interest, due and payable, and the
plaintiff agreed to reduce the Indebtedness by
one half of the principal and all the accrued
interest, and that the remaining sum of SIS 900
and interest at the rate of one per cent. a year,
should be paid by commissions on sugar to be
consigned by the said defendant or his agents to
the plaintiff at the rate of four per cent. in
consideration of the defendants agreeing that
two-ffths of all sugars by the defendant or his
agents consigned or caused to be consigned to
San Francisco for sale, should be consigned to
plaintiff for sale on the terms herein before
named, until the said net commissions should
amount to all of the remaining Indebtedness.
And the reduction of the debt was made condi-
toned on the consigning of the sugar to the
plaintiff as set forth and that so long as defen-
dant should carry on the plantation and consign
sugars as aforesaid, no enforcement of this debt
should be made by plaintiff.
1t appears by the evidence of Mr.. George
MacFarlane, that the firm of Green, MacFarlane
q Co., were agents of the defendant, succeeding
Theo. H.. Davies. That Mr. Davies and also the
firm of Green, MacFarlane & Co., shipped sugars
to the plaintiff under the agreement of the 18th
February, 1875, the net commissions on which
as appeared by a memorandum furnished by
plaintiff, amounted to So, l4l Al, and the witness
said, that he continued to ship sugars to plaintiff
until the foreclosure of the mortgage on defen-
dant's plantation in August, 1880, and that the
commissions on the sugars consigned in 1880
were $42S.2l. Also that this agreement was
signed by Mr.. Spencer and passed to Brewer &
Co., who were Welch's agents, for signature,
and they acted under it. That in 1877 Mr..
w Ellen, WDlle ID honolulu, SAID TO witness, that
as his agents had not signed Spencer's agree
ment be was not bound by it, and he would
repudiate it. WEIGH called on Mr.. Green and
and complained, that we had shipped
sugars to Portland, and that we had no
business to do SO. We took a different view of
it. We looked for our copy of the agreement
and could not find it, and Mr.. WEIGH said his
copy was over at Brewers and upon going for
it, he discovered that it had never been signed
and then he said it was no agreement. He then
with agreement (marked III, dated the 18th
September, 1870 restoring the claim to its
amount, and said 'SIgn that agreement"
and l declined to sign it. While the witness
gone to seek legal advice, Mr.. Green signed
the agreement under pressure Of a threat by
WEIGH, that he would put Mr.. Spencer into
bankruptcy unless he signed it. Mr.. Green said,
he did not sign it, it would jeopardize their
on the plantation.
The power of Attorney under which Mr..
Green acted when he signed the agreement is
lated Both August, 1877. and by it Mr.. Spencer
Constitutes the firm of Green, MacFarIane & Co.,
8 my true and lawful Attorneys for me in my
lame to transact all business appertaining to the
[. Spencer's plantation, Amauulu,H ilo Hawaii
This last agreement dated 11th September, 1877,
n substance recites that WEIGH, holding the
totes of Spencer amounting to $10, 700, which
due and unpaid. agrees to waive the
ccrued interest, and take new notes for the
anne sum with interest at four per cent. per
pdyaole dunudAy' 1--WE pei coht' Oo"-
Nilsson was to be charged on sugar consigned to '
Velch for sale, and, of this, one per cent. was to
e paid to S~pencer's agents, and Spencer was to
en- not less than fifty per cent. of each crop to
AN Francisco of which two-ifths were to be
to WEIGH.
The defendant excepted to the instructions I
iven to the jury at the plaintiff IS request, (1)
hat the defendant is bound by the agreement
n file signed by Green, MacFarlane Il Co., and
hat the notes are by that document taken out of i,
be Statute of limitations, and (2) To the follow d
ng instructions given to the jury: : It appears
D the occasion of signing the second agreement
hat MIR. WEIGH was in Honolulu, aud claimed,
by the az reement of 18th February, 1875,
pencer was bound to ship all his sugars to San
Now, it is apparent that if such had
cen the course of business before, WEIGH would
ave just cause to complain if any considerable