The Hawaiian gazette., 1883-03-07


This i an action on guaranty Lhe de-
Eezydaut nv contract Of guaranty dated beeeliI :,
Rer II. 1850. zzreed that {. l. 1lsdase "oulu
faithfully carry ont and perform eUh-
= - ---a-is -, hin with Smith and Johnson
: tu carry for them 70 tile haiawa MN Nnsn
ready fcr grinding. TWO crops OF cane which
y -rsn ~ 10 crous Of ISL ana lSS2, now
= stan5iu- On premises held by Smith and
. Jri.r~on uu6er agreement with Tlsdaie ana
Tbrursop' And further undertook to guar
nrtes ana indemnify said Smith and johnson
frurn al loss or damage by reason Of the non
,,--frrmance Of said contract 10y fault OF SAID
c. l. Tlsdale.
By that cartins contract, said {. l. Iisdale
agreed that each team employed IN dong said
ra-t5r-. should do fair and honest day
work. and each team should be reekoned AZ
seven 5000 dollars per day. The verdict OF
.ne 7rrv a. the October Term was against the
defendant for SIS00 damages; and the defend
ant appeals TO this Court.
Bv the verdict Of the Jury 1t was conclu-
slveir decided that c. /. Tisdale failed to do
FAIR and honest DAYS works under said cartlng
-untract ana that the direct damage thereby
arls7n- 10 the plaintiff was S742.0S. The rest
II tie l5auz-es were given because Of the IN
iurv claimed 10 arise TO the plaintiff from
wrcn-ful sale by c. L. Tisdale, through the
5efeuC ant, his agent, Of the plaintiff sugars
Manufactured from his cane, carted to SAID
mill Nv said c. L. Tisdale under the said con-
-act.
Tie plaintiff admitted at the trial, that at
tic tine the sugar was sold he owed {. l..
FIsdalc for balance OF carting over and above
III damages for unfaithful work, the sum OF
SIzlf.70. The plaintiff never made tender OF
this sun 10 the said c. L. Tlsdale.
l. Tfslale claimed that the balance due
hin for cartinr was Sl956.7S. On this point the
verdict OF the Jury Is in favor OF the plalntitt.
The Sugars sold were worth, when sold at
their then market value, fhe sum Of SS0l5.ol.
The sale made Of sugars was at much less than
Ihs1r market value, and they were manly
ho1ght iy the defendant
ne sale was made to collect said balance Of
1855 - claimed due, under chattel mort
rz-e given by said plaintiff johnson, on SAID
sugars. 10 sid c. l.. Tisdale.
Priar 10 the sale the said bill for teaming as
claimed by c. L, Tisdale had been presented
- 10 Plaintiff and payment demanded, and on
Aurrst II. IsSa. {. Z. Tisdale, through de-
fsrsart IS his attorney in fact notified PLAIN
tH IN writing. that as hs had failed to settle said
tSIl. he should take possession Of said sugars
10 nav the same, and expenses rs empowered
Nv sai5 mortgage, and that unless the account
was settled in two weeks he should sell the
sugars n public auction.
To this notice the plaintiff on the same day
replied in writing as follows:
KoHA1a. August II, 1882,
p. TEshrls. H1i11d -Nit,-I received 4
notihcarion from YOU this morning, that IN
uaso / did not settle your bills presented, IN
two weeks. von would sell enough Of my sugar
to satisfy the same
a. vpur bills are not according TO agreement
Il lea- so
1 hereby notify you that any sale You may
n,at7e If any Of my sugar viii be Illegal and
void. and that shall hold you and all parties
concerned IN such sale liable to me tor dam
aces. tSigued,l Henry JOHNSON.
The said chattel mortgage provides that if
default lie made in payment of any balance due
~ tramiur to said c. L. Tisdale. he may take
possession al said sugar and sell the Same at
ruhlic Or private sale, and apply the proceeds
- lie ravIneut Of said amount due, aud ex-
rensss. and return the balance to the plaintiff.
The mortgage recites that payment TOR the
-eaniin.- Is 10 he made when it is done.
Tbs last clause is 10 be construed reason
ably.
he plaintif was not in default in this case,
Ill atser the bill therefor was presented.
When presented as appears above, the plalntIfi
a-spE Ait
ne lr-rnt Lle Vas NQAAlUNO4s1 u~NNSSi
The uaas. Ii was az unliquidated sum.
Tie .andant claims it was liquidated, as
.,rh Towns TO lie reckoned at $3.50 a day
ire cn1tt saws such lsads were to be :" tar
- hone loads. The verdict of the jury
Enss the.--e not So The value Of the loads
.rtuailv t1i was unliquidated. and required
For lie defamation thereof the decision OF q
larzI trIbul Il was uncertain because oi
ne Uron-fat of the defendant
The deficit says the mortgage Is to be
5istinruisheAom one securing unliquldated
aamsges. Hhere been 10 dispute as to the
Lina cf loadss might have been true. But
- dispute idered the mortgage clearly
security for alliquidated sum
In such ! cslo seizure and sale under q
mortgage wone valid till after the amount
Ire fe-carne fz,r legal investigation See
ne Mott Is Ben, Ed ch. r. ?. 307, 3l6-
IL. Ferguson Kimball, 3 Barb. Oh. X
Rf6-fa. Fergus Ferguson, Com. 36O-f
Until defaults made the plaintiff had the
possession Of tkgar.
TIE defeudan sunset asked the CouEratc
instruct the jury
That ChaI.. Tisdale under the au-
thoritv given tol BY the mortgage iron
Johuson had pow take possession OF John
sons sugar TO pae balance due or team
irg
+" dat JON having alA44lls1 = b-A'
auce Of $1,000, ttiue from him TO Charles
IL Tisdale for TEA, the latter had full au-
rhurity to take piston Of plaintiffs sugar
il not being pTete that tender was made
al this amount
The Court refus 70 charge, and we thinl
Inc Court was rlg
The mortgage Pes as quoted above tina
IN case default be in payment Of any bal
aure due, the said Tisdale may take pos
session Of the suga
Had legal tendsn made Of the amour
dine II would have equivalent In effect t
raruneut and c l. e could not have takel
~ ratained possess ID his lien would hav