The Hawaiian gazette., 1884-01-16

This is an action for an alleged breach of cove
uant contained in an agreement between the
parties. The plaintiff, and another who has now
parted with his interest, therein agrees to plant
not less than 70 and not more than LEO acres OF
sugar cane yearly for the term of ten years, ire
spective OF ratto0ns, and the defendants agree to
grind and manufacture the same for certain
share stated. The agreement is lengthy and goes
INTO many particulars. The covenant upon which
this action is based, is as follows:
And IT is also further agreed in consideration
Of the distance from said mill that the parties of
'the first part their heirs and assigns will pay to
Charles A. Chaplin his heirs and assigns the sum
&c Of three 500 dollars per ton on all the sugar
produced from thirty-seyen and one-han t37IEl
acres of cane, and rattoons of each crop, during
the above term of ten years, said number of tons
per acre to be an average of the entire crop of
" cane and rattOOns each year"
The plaintiff claims the sum Of $4,000 being the
sum of three dollars ton upon sugar made from
81 acres Of plant cane and 81 = tons of rattoons
and requesting the PRESIDING Justice 70 charge the
Jury that be was entitled to this sum upon pro-
per construction Of the agreement. The Court de
clined 10 grant this instruction but directed the
jury 10 ind verdict for the plaintiff for S43172
being sum at the rate of 500 per ton upon 81
acres.
We are now to decide what is meant by the
words "thirty-seven and One-half acres of cane
and rattOOns.' Do they mean thirty-seven and
onc-half acres eacn Of cane and rattOOns, that is
seYenty-fve acres of sugar cane compOsedOf either
or both plant cane and rattOOns, or thrty-seyen
and one-half acres of cane only whether the same
be plant cane or rattoons
Words in q contract are to be construed in their
plain and ordinary meaning, and where meaning
can be derived from them without the interpola-
ton of other words this meaning must be received
as the one intended by the parties To give the
words " thirty. seven and one-half acres of cane
and rattOons," the meaning commended for by the
plaintiff, would require that the word each be in
serted. or some other word to show that IT was in
tended that 81 acres of plant cane and also 3I4
10 4
upon which the sum of $500 per ton of sugar pro-
duced therofrun was to be paid.
We are not impressed with the argument that as
~ acres was the minimum acreage TO be planted
each year, this must be assumed to be the acreage
on which the $500 per ton was to be assessed for
the cane raised on this amount of land would be
all plant cane and not rattoOns. Moreover the
distance from the mill was the consideration for
this allowance and not the quality of the cane to
be carried. whether plant rattOOns, it not ap-
pearinE that one is more difficult to cart than the
other.
Bv Section 16 Of the Civil Code. each of the
terms or and and has the meaning of the other or
both, when the subject matter, sense and cOnnec-
ton require such construction" The word and
between cane and rattOons' means both " and y
and =" Or and appiE1nS tins rule of construction
to the words Of the contract, it may be reQd as
follows; $500 per ton was to be paid by the de
PENDANTS on all the sugar produced from thirty
seven and Onehalf acres of cane and TORI rattoons
Il is lInaterIal which, for the number of tons was
to be an average Of the entire crop of cane and
ratio0us each year.
As TO tie matter Of carting the cane and rat
tOous not separated in the contract. II there
were ~ be thirty seven and One-half acres Of cane
and thirty-seven and One-half acres of ratoons
to average the tons per acre of plant cane and
Tattoons separately to the whole acreage Of plant
cane and rattOons would be unfair and was not
intended
The exceptions are oyerTuled.
Z. Preston for plaintiff; f. NJ. Hatch for defen-
dauts
HouOlulu January Stb 1854