The Hawaiian gazette., 1883-03-07

y. L.
In this case, as shown 10y his letter Of Au
gust IL, the plaintiff was ready and willin:
and offered to pay the balance of the teamins
due c. L. Tisdale which he refused TO receive
and demanded much more than he was entitled
to, as found by the jury.
Thereafter the plaintiff had right to de.
mand his sugar and the subsequent seizure ant
sale Of it was conversion for which C. l.
Tisdale was liable.
Until Johnson made default in payment, lis
dale had no right even 10 take possession; and
johnson made no default. See also Hoyt VS.
Sprague, 6l Barb. 1917, $3.50, Adams vs.. CLARK
and others, Cush. p. 2l5, Jones VS.. Tarleton
Meeson and Welsby p. 674-7. As charged
by the Chief Justice, the seizure and sale were
at the risk Of c. L. Tistale.
The defendant further objected TO the charge
of the Court, because it authorised the jury to
give damages for loss resulting from the sale
under the power contained in the mortgage,
which sale occurred after the suit was begun.
At that time c. L. Tisdale had wrongfully
taken possession of the sugars.
The plaintiff had right to recover the whole
value Of it less the balance due for tcaming.
The sale was merely a now wrongful act,
occurring after process served, and being the
incident and direct object of taking possession.
By numerous authorities the plaintiff had a
right TO recover damages arising from that
sale. See Sedgwick on Damages, p. Ito to III,
Wilcox ct. al. vs.. the executors of Plummer, 1
Peters r. l72. If this suit then were against
c. L. Tisdale, what we have said shows that
he would be liable for the damages which have
been recovered against the defendant.
This brings us TO the remaining question in
the case
The defendants counsel urges, with great
confidence, that the defendant is not liable on
his guaranty for the damages recovered against
him, nor for any damages, because there was
due c. l.. Tisdale 200 over and above all
damages for breach of the teaming contract for
which only defendant was liable.
He says defendants liability became fixed
upon the delivery of the last load of cane. That
the damages arising from seizure and sale OF
the sugar did not arise from the contract which
he guaranteed but from subsequent proceed
ings, upon different contract, namely, the
mortgage from johnson to c. l.. Tsdale.
To sustain this view he quotes many author
tiles, the law of most of which we do not dis
pute.
BE specially relies upon the case of United
States VS.. Tillotson, Paine, c. c. p. $40.
He wishes the Court carefully to examine
LlllS NAsN, anu THAT II Is IluCu QSNOuu
the facts of his clients case, in favor of his
discharge. We have followed the wish of the
counsel about this case and fully agree with him
that the guarantor sought to be held therein
should be discharged The facts show an
agreement TO build a fort for the United States
of brick, for which the contractor was to re-
ceive SlI.O0 for every cubic yard of brick
masonry, which contract the defendant guar
anteed. And thereafter the contract, without
the consent of the guarantor, was changed SC
that the material should be in large part of a
certain composition called tapia, being spe-
cies of artificial stone, for which the contract
or was TO receive $1,000 cubic yard
This constituted an entire change of the con-
tract guaranteed, and no authority can be found
which would hold the guarantor for damages
under such a changed contract. The other
cases cited by the defendants counsel are tc
the same effect, and need not be specially con-
sidered.
1t is not pretended in the case at bar that
the teaming contract in itself was changed, bu
it is said that the defendant is sought to bt
| made responsible for damages under the chat
tel mortgage to C. l.. Tisdale, different con
tract and the payment of which damages h'
| did not agree to guaranty.
On referring to the contract of guaranty W.
find 1t bears date December 81, lSsG. anC
I agrees to guaranty the performance of con
| tract for carting cane made by C. i. Tisdal,
with the plaintiff.
The conditions of that contract were con
tanned in three papers, the bill of sale AM
teaming contract so named, and the chatte
mortgage from Johnson to c. L. Tisdale, ant
the chattel mortgage exhibit ''E' from c. /
Tisdale TO johnson, on which the guarant,
was written. On examining these papers W
| find that they are between the same parties
and are dated respectively December 81, 1880
the same date as the said guaranty. That the.
| and the guaranty were acknowledged befor
the same officer on the same day, January
| 1851, and doubtless they were mutually deliv
cred, or intended to be, on the day they wer
acknowledged Each of The chattel mortgage
refers to the teaming contract and the mort
gage from C. L. Tisdale to Johnson was give
| upon teams sold by Johnson to G. l.. Tisdal
| further to secure the faithful performance {
the teaming contract.
In Makepiece VS.. Harvard College, 10 Picl
29s, 3ol, Shaw C. ]. says Several instrument
made at one and the same time and having re
Iation to the same subject matter, must be ia
| ken to be parts of one transaction and be con
! strued together for the purpose of shown
WlaL was tue AluS VOAeAaSl ooe"eS 1N0 POI
ties"
And in Cornell vs.. Todd, DEMO, 1903;
Judge Bronson says 1T Is undoubtedly tru
that several deeds or other writings, execute
between the same parties at the same time
and relating to the same subject matter, and $
constituting part of one transaction should b
read aud construed together as forming part
of one assurance or agreement" See ais
Hartford VS.. Rogers, II Barb. Is, 20; Peppe
VS.. Haight, 20 Barb. 429-S5; McNulty v
Prentice, IS Barb. 204-s; Hathaway vs.. Payne
"a n. Y. r. 90, 100; Cow. & Hills notes
Phillips Ev. pc. 1922. Parsons on Con. Vo
I2,p.15.
| Under these well settled rules the three con
tracts between c. L. Tisdale and johnson wer
lsparts of the same transaction, and are to
constrded together, and the binding condition
of the teanaing contract are to be determine
by examining them all. If there are any du
II i l. g .ar,