The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1885-03-25
surrems Uonrt Of the Hawaiian Islands,
+ From the Jnnnary Term, 1855.

Honolulu, March ID, 1885.
surrsms Conrt Of the Hawaiian Islands,
g Frum the january Term, 1855.
r. A. MAcFIE vs.. H. HAcKFKLD s. Co.
Heard By -ooHseAi, Meroh ,, ISS5,-fj's jerry being
,catrrd. OPINION Of CHEF Jnsfioe Ju9d.
The plaintiff who is a resident of Dreghorn,
Scotland, claims of H. Hackfeld, P Isenberg,
ii. W. Schmidt, II. F. Glade, ]. F. Haekteld
aud J. @. Pfuger doing business at Honolulu
under the firm name of H. Hackfeld & Co,
the sum of eight Thousand, one hundred and
sixty five T7-l00 dollars for so much money
had and received by defendants to plaintiffs
use, according to an account annexed TO the
complaint.
The defendants plead the general issue
The plaintiff introduced in evidence upon
which his case is founded, proposition in
writing dated London, July 81, 1888 from
J. c, Phuger and Paul Isesberg of the firm Of
Naefie, and accepted by him, IN which the
defendants offer to sell TO Maclie all their in
tercst Of every sort in the 'Kilauea Sugar
Company" and current account, Including
all debts dee us by your son Robert (R. A.
Maciie IT. as these stood on the LIST instant,
for the sun Of One Hundred and Fifty Thou
sand dollars &c. Among other things The
agreement recites, your acceptance Of the
foregoing hands over to you the Isl shares
now held by us and the leasehold interest
Appertaining 10 the half-moiety acquired by
your son, and releases the "Mache holdings"
entirely from all liabilities anterior TO July
LIST, whether by mortgage or otherwise, SO as
to give fresh, clean start which we will do
our utmost to make prosperous by our advice or
assistance if desired" 1t further stipulated
that HThis proceeding is to be communicated
to our firm at Honolulu by mail and cable as
soon as possible: Should however, cur in
terests have been sold by our. firm before the
receipt Of the eablegram, this transaction will
be null and void"
Just before the receipt by the defendants in
Honolulu OF the cablegram conveying notice
of this transaction, they had sold their in
terests in the Kilauea Sugar Company TO VIM.
Y. Horner of Lahaina.
After considerable negotiation extending
over some time, Mr.. Horner agreed 10 sell his
interest to Mr.. Macfie (plaintiff) in order that
the firm might carry out the "LoudeE Agree
msnt." The agreement of sale is dated 10th
January 1854. 1t stpulates that Horner is
to sell 70 Mache his interest in the kilauea
sale and of the London agreement, Macfe
shall pay to H. Hackfeld g. Co, of Bremen one
hundred and fifty thousand dollars (l50,000)
| and interest from LIST July 1888: and Mache
1 is 10 pay Horuer $4,000 and TO II. Hackfeld
g. Co, Of Honolulu S62, 9i002 adding thereto
$500 or thereabouts, representing the amount
| Of drafts now extant aud not yet entered in
| the account current between the kilauea
| Sugar Co, and Ii. Hackfeld & Co, dated FROM
and after the LIST July 1888. and subtracting
| therelrom $4,000 or whereabouts representing
the credit due 10 the said account for some
/ 1858 bags OF sugar received on account by
| H. Hackfeld 4 Co, from the kilauea Sugar
| Co, and tot entered upon account current. Il
was also agreed that all necessary instruments
and releases were to lie executed and deposit
| cd with Messrs Bishup & Co., Bankers as an
escrow TO be delivered 10 the respective parties
| upon the payment of the Sl50,000. Other
stipulations appear which it is not necessary
TO recitc, and the agreement closes: at is
lastly agreed that all disputed items in the
account current herein mentioned shall bC
| submitted TO arbitration, but nothing hereir
contained shall imply that any of the pay
ments hereunder TO be made shall be put off by
reason Of such disputes but the same shall be
made as though no dispute existed
On the 18th January 1881, the formal deco
was signed by all the parties: Horner, Macfe
Ii. Hackfeld & Co, and Macfe Jr.
The clause bearing upon the question before
me, is as follows: "And the said parties o
the third part Oh. Hackfeld s. Col agree t.
and with said party of the second part Or. A
Macfe) that the above sale shall take effec
as far as they are concerned as OF July Is
A. D. 1888, according to the terms Of al
agreement made by and between said partiei
in Lopdon, dated July 2lst A. d. 1883, am
that all accounts shall be settled as of saiI
July FIRST; all sugars which may have teel
shipped from the plantation of said kilaue:
Sugar Co, on OF before said July first as wei
as all sugars which may have been received
by said parties of the third part at Honolulu
and are not accounted for in their quarterl,
account of that date are TO 90 to reduce tn
balance due them of that date; and all IN
debtefaeSS aud liabilities Of Sdid hilIued SugG
Company existing anterior 10 JUiy FIRST 4. .
1898 ushettsr By mortgage or otherwise are
be assumed and borne By said parties Of h
third part, and said parties Of hC third pa
do herely assume tie same; all amounts whic
have been advanced by the said parties of th
third part to said Kiauea Sugar Compan.
since July first A. D. 1883 for the use of III
Company and none other are to be paid b
said party of the second part; and said partie
( of the third part hereby acknowledge the re
ceipt from said party Of the second part of tn
sum of sixty two thousand nine hundred an
forty six 1900 Dollars, being the baanc
i. appearing in favor of said parties of the thir
part on this date as charged in their accouI
! | current, less sugars received, bm SAID dcc0m
current dndhe payment Of sdidldS named SUI
on account thereof, are not 10 be taken as fld
and any disputes arising in regard to said az
/ ! count, or in regard TO the transaction covere
by this indenture are to be referred 10 arbitra
, ton &c.
ii At the same time Macfe Senior and Macf
! Junior and the Kilauea Sugar Co, by W.
: Homer President, released and discharged l
: Hackfeld & Co, of all manner of debts, claim
|, demand and liability whatsoever in law
q we'll as in equity which they now have
. which may hereafter accrue to them ri
i spectively by reason of any matter, thin
/ Transaction or business from the beginning
1 The world to the date of these presents, G.
8 cepiiRg. horerer from tbs release such maize
pertaining 70 the book debt due from he Ii
e tlGuea Sugar Co, TO said H. Hdckfcld Dc
: from and after he LIST day Of July 1888 az
b such d,odrds as may hereafter be made betTe
Q item (H. Raelfeld s. Coy aud tic uadersig1i,
. in conformity irih a certain contract Of sd
o 6ef,reen paroles hereto daied he l5d day
January 1884"
81 The plaintiffs bill of particulars is compose
L mainly of items of indebtedness by the X
: lauea Sugar Company prior to LIST July lss
e and which were paid by II. Hackfeld &
e as agents of the Company, and in the first il
Q stance, charged in the accounts current al
repaid by Macfe in the settlement of Is
}: January 1854, and included in the sum
: Se2, $40. One item will suffice to illustra
Y the general character of the transactions.
It the account current there is charged as pa
- by H. Hackfeld s. Co, July 10 1883 ORA
: number l2l favor of Keaka, for S149,50. TIL
# draft was drawn by the manager of the X
V lauea Sugar Company June 80, 1888 favor
) Keaka for balance of contract for hauling eau
4 This is clearly an Indebtedness of the Kilau
8 Sugar Co existing anterior to July LIST, and
4 what Messrs Haclfeld & Co, bound ther
selves TO repay. The language of the de-
: Of January Is is conclusive on this matte
4 They covenant that "dH indebiedRess a
: liabilities of the Kilauea Sugar Co, existil
% anterior to July first A. D. 1888" are to
: assumed and borne by them, and that III,
4 do hereby assume he SDne." These words a
]. susceptible of but one meaning; and the mea
ling is not that whatever sums of money ha'
i been actually paid by Il. Hackfeld s. Co,
a account Of the Kilauea Sugnr Co, are to
II borne by them; but they mean that II. Hacl
e field & Co, agree 10 assume and bear all &
d Indebtedness fthe Company existing prior
: lst July. And if Mache had borne any