The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1882-05-31
Supreme Court of the Hawaiian Islands
April Term, 1852. In Banco.



H. HAcKrELD co. VS.. =. BAL, IT Al.
Motion to set aside verdict as contrary to
law and evidence.
This is an action Of assumpsit TO recover the
sum of SIS. ssl SIS, balance on Book Account.
INC defendants had sugar plantation on the
island Of Molokai. Of which plaintiffs were
agents. and had advanced during a series Of
wears a large sum Of money TO defendants.
The defendants were unable to pay their in
debtedness, and plaintiffs were unwilling to
make further advances, and a sale OF the plan
tation was agreed upon, the money arising
from the sale to be paid to plaintiffs and on a
surrender Of all their property; the defend
ants were to be discharged from their indebt-
edness This agreement constituted an "Ac-
cord" between the parties, that is, IAN agree
ment between the parties TO substitute some
equivalent in satisfaction OF claim IRON one
to the other" Story on Contracts p. 9s2.
Thus far there is no dispute about the facts
Of the case. In order to constitute a good de
fence in assumpsit there must also be satisiac-
ton, that is, the substituted agreement must
be executed "a mere agreement to do a
future act is an accord without satisfaction
which is no defence" ri, and Com. Digest Ac-
cord B. !, see also johnson 3s5, and also
Anderson VS.. Highland Turnpike Co., l6
johnson s. where it is held that an agreement
to accept collateral thing in satisfaction OF
pre-existing debt, is executed by a delivery
to a person appointed by the party TO receive
it, and is a good accord and satisfaction.
1t is admitted that the agreement was carried
out so far as the sale Of the plantation was
concerned This sale could not have taken
place without defendants consent except upon
foreclosure at great cost and loss Of time, and
l.l.sz I'll
ton TO the plaintiffs, and after the sale there
was no way by which Bal could be replaced
in his former position. The proceeds OF this
sale reduced the Indebtedness from S7s,ssl .6s
to the amount sued for: but plaintiffs claimed
that certain cattle were not delivered by de-
PENDANTS and so declined to sign the formal
release.
The correspondence between the parties
bearing upon this point as well as consider
able testimony was submitted to the jury.
The letter of H. Hackfeld & Co. to Bal Of June
10, ISL, says " After having received the SIX
steers from you we will be ready TO sigu your
release" The letter Of June 9th, 1881, from
same to same says plaintiffs had requested
Mr. Meyer to receive the steers. The letter OF
July 2jth, lssl, from same to same asks de-
PENDANT to account for four head Of cattle and
the last letter on the files, August 18th, 1881,
refers the matter to Mr.. Meyer for settlement.
Mr.. Bal testiies that he had four head Of
cattle from Meyers ranch; cone broke his leg
and the rest broke out and ran back to Meyers
ranch, and never sold them to Wong, Leoug
& Co." As Mr.. Meyer was the person to
whom plaintiffs wished them delivered, tue
jury very properly inferred that this was
equivalent to a delivery. Mr. Bickcrton testi-
fes that the senior member of the plaintiff S
firm, Mr.. J. C. Pfuger, after repeated CONVEX
stations, finally expressed himself as satisfied
that the cattle in dispute were in the posses
sion Of Meyer and that Meyer had so written
him, and that as Bal had given up everything,
plaintiffs were now ready to give him their
release But Mr.. Glade testifies that the four
head in dispute had never been delivered.
Subsequent information, received just before
Mr.. Pfuger went to Germany that Bal was
Offering 100 head Of cattle at auction induced
him 10 order that Bal should not be let off, and
this suit followed and the cattle were on mesnc
process attached.
The testimony sent up in the Bill of Exccp-
tions gives no information as TO whether the
matter as to the ownership Of this 100 head Of
cattle was gone into before the Jury. The
question for the jury to consider was whether
Bal had in fact executed the agreement to de-
liver up all his property and thus make salts
faction, and that it had been accepted as such
by plaintiffs.
Upon a review Of the whole case VIC fud
that there was evidence 10 sustain the view
the jury took Of the mattcr-and cannot say
that the verdict was against the evidence or
the weight of evidence The charge Of the
Court, it is to be observed, was not excepted
10. New trial refused.
5. B. Dole for plaintiffs; Il. +. Bickcrton for
defendants.
Honolulu. Nav 22d, lSs2.