The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1884-06-11

down at the lSldlus long hSOf tue NeatneA
all along has been very rough and cold
and any amount of rain. At any rate as
soon as the affair is fully settled up, i
shall return to the Islands and see you.
Please give my respect to your lady:
Hoping that this will meet you in good
health, remain yours truly,
TSignedl NJ NEIssER.
P. o. Alameda.
The conclusion | have arrived at is that
NJ. Neisser 10y his oft repeated promises,
induced Mckeague to believe that he
would sell the 10000 shares which was to
be his interest in the incorporated com
pany, that is, two fifths of the whole fol
$40 a share and thus realize 100000, and
these alluring statements made to Nc
Keague, while his mind was enteebied and
his Judgment not good, entirely captvat
ed him, and induced him to sign away his
property against the circumstances OF his
| friends.
The case of Harding VS. Handy, IL
Wheaton 1903, is authority for the propos-
ition that equity will set aside convey
ance obtained by undue influence from
person who was so infirm in body and mind
| from old age and other circumstances, as
to be liable to imposition, although hi;
weakness does not amount to INSANITY
The moving cause creating the lnfirn
condition of mind may be old age, or II
NAV be disease or injuries or any agency
even an unknown one, but if equity md;
from the facts and circumstances that ad
vantage was taken of weak intellect t.
press and secure an uncomfortable bar
gain, it will annul it.
The transaction between Mcheague anC
Neisser has resulted as follows :Mcheague
considering only the uncontested facts
conveyed his plantation to a corporation
in San Francisco, for the consideration o.
| 10000 shares out of 100000, that Is, two
fifths of the whole, and the agreement o.
the company to pay off the existing mort
cages. In default of language in the
agreement distinctly limiting the timt
when the mortgages should be paid, hole
that il is to be taken that the company
agreed to pay the mortgages when they
became due In the case of the first mort
gage of $4,000 to H Hackfield & Co, anc
assigned to P. Isenberg, it is overdue as
appears by the certificate from the Reg
istrar's office, and it is not paid and this
shows failure OF the consideration in the
deed.
II seems to be that the requiring Nc
Keague to surrender in San Francisco
10000 shares of the stock to be kept as
collateral security for the payment OF the
Kennedy mortgages was an act Of bad
faith and a wrong.
1t is testified by Mr.. Brown that Neissel
knew of the Kennedy claim April 9Th, 1881
when the first agreement was made. Nois
ser saws be knew of it when the deed was
signed. June 30. 1882, and the deed itself
recites the Kennedy mortgage OF S54,5OO
McKeague was not bound by any prln
cipal of law or justice to give up one fifth
of the stock of the corporation, to secure
the payment of mortgage which the cor,
poration had agreed to pay; and man Of
ordinary sense and judgement would not
have allowed himself to be thus managed
Another circumstance showing the facll'
ity with which McKeague was induced to
deliver the deed. and how completely he
trusted Neisser, Is as follows: The agree
ment of April 9th, 1881, and of June 18th
1881, both stipulated that upon showing
and proof to McKeague that there Is a
sum of not less than one hundred thous.
and dollars in the treasury that he will
sign. execute and deliver a good and valid
deed etc. and vet Mckeague, in spite OF
the caution of Mr.. Brown not to deliver
the deed until the stock had been handed
to him, passes it over directly after its ex
ecution to Neisser and there is no proof
that McKeague ever inquired If this sum
of 100000 or any part OF 1t was IN the
treasury. Mr.. Neisser on being asked II
there was ever this sum in the treasury,
replied that he was not the treasurer and
did not know. and yet he says that Nc
Keague's receipt for the 10000 shares OF
stock shows that they were from him,
Neisser, in order that he might have proof
that he had carried out his agreement and
he ought TO have known the facts.
It is remarkable that no one knows
where McKeague's remaining 10000 shares
are Mr.. Neisser, however, says that the
shares though of the nominal par value OF
ten dollars. are not even quoted on the
stock market and there is no evidence that
they ever have been
This leads me to say that the agreement
is broken in another respect and that CON
seduently the consideration in the deed
has failed, for by the agreement Neisser
agreed not merely to incorporate the
Heeia Sugar Plantation under the laws OF
the State of California, but to place the
stock of the corporation upon the market
of San Francisco, through the agency OF
the San Francisco Stock Exchange Board.
II to place stock means to sell it, there
Is plain failure of consideration.
But am of the opinion that outside OF
the written agreements and the facts ad.
mitted by the defence, it is well proved
that Neisser induced AIcKeague to part
with his property by means of the promise
that he would sell the stock for him at pan
and have the sum realized, 100000 ready
for him IN San Francisco an idea which
no sensible man would for moment be
lieve to be possible, considering that the
plantation was worth only say S15O,OOl
and had mortgages on it to the amount OF
about SI25.OO0. To realize 100000 fol-
McKeague alone, to say nothing OF the
other three fifths of the stock, out OF a
property worth only about S25,OOO clear
would imply that the public of San Fran
cisco were to be swindled to accomplish
this result.
Mr.. Neisser made these assurances not
only to McKeague but to his friends, un-
doubtedly to disarm them and to prevent
them from dissuading McKeague from
withdrawing from the bargain.
look upon Neisser's getting Meheague
over to San Francisco as suspicious. 1t
was most useless and foolish for him to
undergo the expense and loss of time Of
this voyage when the shares or the money
for them could have been RENTED to Ho-
nolulu. 1 cannot avoid the conclusion
that tine defendant wished to have Nc
Keague where he could be operated upon
away from the influence Of his friends.
Upon a review of the whole case l am Of
the opinion that the bargain was against
equity and good conscience and ought to
be annulled, and / also find that she cor
porstion defendant is not an innocent
purchaser for value, and IS not protected,
so far as the sale Of the plantation is con