The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1881-03-19

his best discretion, yielded to Mr.. WEIGH and
having full power to dO SO from Spencer,
entered into the second agreement, thereby
cancelling and annulling the first. Now 1t being
apparent, that Green. MacFarlane u Co.. as
agents for Spencer, had authority to do so, Spen-
Ger as we'll as WEIGH was bound by the second
agreement, and the notes took new life from that
date. or in other words, the Statute OF lImlta-
ton would begin to run from the date OF that
agreement"
The first question to be determined is whether
tile words in the power OF attorney from MT.
Spencer to Green, MacFarlane i Co., "to transact
all business appertaining to the T.Spencer's plan
tation,' authorized Mr.. Green to sign the second
agreement.
1t is urged that the effect of signing this
second agreement-if the authority to dc 30 be
conceded-was to annul the first agreement
which was highly favorable to Mr.. Spencer, Tor
it reduced mis- debt one half. The new agreement
substituted was more 1nerous to Mr.. Spencer, for
it restored the debt to its original amount.
Although doubts may exist as to the authority OF
an agent, under a general power of Attorney to
transact business, to bind his principal TO an
agreement manifestly to his disadvantage, we are
not at liberty to consider them under the peculiar
circumstances of this case. The defendants
reioinder avers, that the indenture of February
18th 1875, was never made, executed or delivered.
50 And that the plaintiff never became a party to
it and at the time and since the date thereof he
hath repudiated the same"
The defendant denied the execution and
delivery of this first agreement, in order that it
might not have the effect Of taking the notes out
of the operation of the statute of limitations as
claimed by the plaintiff and we cannot now
consider it to have been in effect on the 18th
September, 1877, when the agreement Of that
date was signed.
This agreement when considered with reference
to Mr.. Spencer's s condition, the agreement of Febru-
airy 18th 1875 being treated as a n%ullity, was
favorable to Mr.. Spencer for it rid him of his
obligation to pay the accrued interest and redu-
ced the interest to four per cent. per annum, on
this debt of $40, 900 and one to Williams.
Blanchard & Co., of $l5,e which were to be
paid in annual installments of SIS 900.
In this view the objections to the suficiency of
the power of attorney fall to the ground, and
therefore, the charge of the Court that Mr..
Green had authority to make this agreement
was right. And the further charge of the Court
that this agreement gave new life to the notes,
it being made less than six years after the notes
were given was also correct.
That part of the remarks of the Court which
is quoted in full above, is objected to as being in
substance a charge that Spencer had failed to
keep the first agreement. In reviewing it care
fully, we do not find any such expression of
opinion. The Court indeed said that 'the claim
set up by the defendant would enable him by
adhering to the letter of the agreement to send
the larger part or all the sugar to another market
which would be a fraud upon Welch.'' But
this was upon a hypothetical case stated by the
Court that, if the course of trade had been to
ship all the sugar of Spencer to San Francisco.
and after the agreement Spencer had shipped any
considerable proportion to other places, WEIGH
would have just cause to complain. This was a
correct view of the contract but the jury were
not authorized to consider the question whether
or not Spencer mad broken the contract in this
respect, for Spencer was endeavoring to maintain
what he bad plead that the contract had never
been made, and he cannot now take advantage of
the observations of the Court with reference to
the fulflment of the contract which he insisted
was a nullity.
The agreement of the llth September, 1877,
was sufficient to take the notes out of the statute.
Considering the pleadings and the exact issues
raised by them for the jury to pass upon, we see
no error in the charge of the Court. Exceptions
overruled.
Castle & Hatch for plaintiff.
j. M. Davidson for defendant, at the trial.
A. s.. Hartwell for defendant, in exceptions.
Honolulu, Feb. 2lst 1881.