The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1882-03-29
Aalraiian 6azttte.
Esr uopus IN MINUS.
WEDNESDAY. MARCH %. 1852,
svrrene Court of the Hawaiian Islands
January Term. 1882
$. NAeNIN VS.. Z. FUReIE.
N BANoO.


January Term. 1882.
$. NAeNIN VS.. E. FUReIE.
II BANoo.
J,,dd, c. j.. NcCuIy aud lush, }. J-0pin-
ion Of The Cour@ By AccaRy, J.
The complaint in this case sets fOrah re-
ceipt embodying contract, in the following
form;
The Pacific Mutual Life IasrrDioe Co. Of
California. Sacraasaio, California.
HoSoLuLu, Oct. %, 1881.
Received from Julius Maguin, of Honolulu,
The sum Of three hundred and thirty-1ve
and lO-IOO dollars in silver TO become the
first annual premium on an assurance OF
IS. 600 on the life Of himself for the benefit Of
himself
Application for which has been made to The
Pacific Mutual Life Insurance Company OF
California. Should said application be aP-
proved by said company, and Policy Of
Assurance corresponding Herewith be issued
then this receipt is to be given M on delivery
Of said policy: but should said application I've
rejected bv said company, then the amount Of
premium money as above named is to be re-
turned upon tender of this receipt.
f. FURGIE, Agent.
And further alleges that at the time Of the
payment Of the money and giving the receipt,
II was covenanted and agreed by and between
the parties. orally, that if the policy Of life
insurance was not issued on the application to
be made by the defendant and was not deliv-
cred by the defendant to the plaintiff on the
arrival of the steamer "City Of New York"
Al Honolulu on her return trip from San Fran
cisco, in the month Of November, 1881, then
the said amount should he refunded and the
application cancelled: with averment that the
steamer arrived on November 10Th, the policy
demanded and not delivered etc.
The demurrer is based on the rule thai,
Greenleaf Ev. S2Tj, parol contemporaneous
evidence is inadmissible TO contradict or vary
the terms Of a valid written instrument. The
plaintiff per contra, that the parol contempor-
aneous agreement supplies 4 definite term,
namely the day Of the arrival Of the steamer
for what was left undetermined and ambigu-
Gus in the written contract
The doctrine controlling this case is CON-
pendiously stated by Wells J. in Stops VS..
Smith 100 Mass 60, in these words, " The
principle of law is clear and well settled that
the obligation Of a written contract cannot be
abridged OF modified by or made conditional
upon another preceding or contemporaneous
psrol agreement, not referred to in the writing
itself. But it is equally well settled that Tor
the purpose Of applying the terms Of the writ
ten contract TO the subject matter, and remoy-
ing or explaining any ambiguity which arises
from such application parol testimony is ad-
missible and has a legitimate office. For this
purpose all the facts and circumstances out Of
which the contract arose including the situa-
ton and relations Of the parties may be
shown.
The plaintiffs case depends on the COM
bined written and parol agreement He con-
tends that the time for resembling the contract
and repayment of the money was left undeterm-
ined in the written instrument, and that the
parol agreement was necessary to make it
complete.
When the terms are incomplete parol evil
dence is admitted TO explain what is per Sc
unintelligible, such explanation not being in
consistent with the written terms thus on
memorandum 81 o. L. the sum of $4,000
which l shall pay on demand TO you," parol
evidence is admissible to show the person to
whom il is addressed, Greenlesf ) 2s2 and
note The parol agreement is always TO be
distinguished from the evidence Of what the
parties intended to be understood by their
writing, when the writing is ambiguous. In
the case before us new term is sought TO be
combined by parol agreement, whereby the
contract to refund the money upon the reIec-
ton Of the application is modified TO be con-
tract to refund if the policy shall not be de-
livercd 10 the plaintiff upon the return Of the
steamer in November, and a breach Of con-
tract would depend on the condition added by
parol. But if the parties intended this to be
their contract, they should have so specified it
in the writing. The receipt which .he plain
20 I
the specified provision Of a date when the
policy should be delivered or the money re
funded. Thus when lease Of coal lands said
nothing as to the quantity to be mined, but
established the price per bushel for all that
was mined, it cannot be shown by parol that
the lessee at the time Of signing the lease
promised 10 mine al he could dispose Of.
10 policy of insurance on goods in ship or
ships from Surinam to London, it cannot be
shown by parol that q particular ship was
verbally excepted at the time Of the contract,
or that the risk was not 20 commence at the
specified port OF departure. Parol evidence is
inadmissible to prove that promisory note to
pay a certain sum on day named was agreed
to be continued while the interest was paid
Greenleafs Ev. 5 PSI and notes.
No time being expressed in the contract
when the premium should be refunded and the
parties be of their mutual agreement, the law
implies that it must be reasonable time, and
what is a reasonable time must depend on the
circumstances of the case, Ellis vs.. Paige, I
Pick. 40, Coffin vs.. Lunt, Pick. a. 4
reasonable time must be such as not to injure
the interests of the parties concerned, Pertu
vs.. Blood, Pick SO. What is reasonable
time within which an act is to be performed
when 4 contract is silent on the subject is a
question of law. Atwood VS.. Clark, Greenl.
Rep. 25O. but when what reasonable time is
depends on certain other controverted points,
or when the motives OF the party enter into
the question, the whole is necessarily sub
mitted TO the jury, Hill VS.. Hobart, Is Maine
l64
In an action on a contract in writing which
does not express the time when it is to be per-
formed, and which consequently is to be per-
formed within reasonable time, II seems that
a simultaneous, express verbal agreement, that
it shall be performed on a particular day. is
not admissible in evidence; unless perhaps it
may be admissible in connexion with other
facts as bearing on the question Of reasonable
time. Per Shaw, c. j., in Atwood V. Cobb, Is
Pick l27.
Upon this review of authorities applicable
TO this question we hold that the Court below
correctly sustained the demurrer.
Honolulu, March Il, 1852
J. NJ Davidson for plaintiff, Ed. Preston for