The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1885-06-10

We refer to the opinion Of Mr.. Justice Aus
tin below. for statement OF the essen''a
facts Of this case.
For reasons which will appear later We d.
not think it necessary TO decide whether th'
defendant corporation was bound by lie lcas'
made by manager johnson, or whether raii'
ication has been proved.
We think the rights of the parties in TIL
case are 10 be determined by the instrumen
dated Nav G. 1882, and called Surrender
II was an agreement made in settlement Of at
action Of eiectment brought by defendant
against plaintiff for the possession Of the PREM
ises in controversy II recitcs that "whercas
the said party OF the second part has cuin-
menced a suit in ejectment against the salu
party of the first part to eject him from certali
premises at said Kohala, the property Of SAID
party of the first part, which said premises are
| claimed by said party OF the first part by vir-
tue of lease made TO him by Henry JohnsUni
as manager of the Kohala Plantation, ao raj
| idify Of ,rEich lease is denied Jy said pa3y Of
| He second part; now therefore, the said party
of the first part in consideration OF the DIS
continuance and withdrawal OF said suit, doth
hereby surrender the said lease and retiHqatSh
all claim 10 sud premises or any Pa'f H-Tcy
by reason Of he sud lease or by reason Of any
riglf or clDim arising hcre0W or mere'roR
and doth hereby admit all Of the claim OF the
plaintiff, the kohala Sugar Company III and
TO the premises and that he, said party OF the
first part is tenant at will only Of the same
and al any time and all times on ten days no.
tice 10 quit shall and will quit and surrender
possession thereof TO the said party of the sec
cond part and will ON demand pay up all ar
rears of rent and thereafter make payment
n Tr,,, 4 INN aS demanded 90
Ii seems TO us that the above instrument re-
leased the Kohala Sugar Company from its
obligation to pay for the building erected by
Akiona. That right arose, if at all, IRON the
johnson lease, for it was the only contract
existing between them. The suit IN electment
was brought since the corporation maintained
that it was not bound by the Johnson lease.
If il was brought because the rent had not
been paid, as Mr.. Chaplin says, it is unlikely
they would have allowed Akiona to remain on
the land as a tenant at will paying the sanse
rent! We think the effect Of the whole testi-
mony ia that the object of the suit was TO test
the liability Of the corporation on the johnson
lease.
Now Akiona, in consideration of the with
drawal of the suit, not only ''surrenders The
lease" but relnquishes all claim to the prem
ises ON which stood the house which he had
built and therefore the house itself "by rea-
son Of the lease or by reason of any right
or claim arising therout or thereirom. The
right he claimed that the company should pay
for this house was a right arising from the
lease, and he relinqushed it to the company
as effectualy as he reliuquished his claim to
possession Of the land for the three months
remaining of the unexpircd term. We gather
this intent of Akiona from the whole instru-
ment.
We think that the effect OF this instrument
was to create new relations between the par
ties and cancelled all claims which Akiona
might have had by reason Of the johnson
lease. Otherwise why should the corporation
have discontinued its suit? The johnson
lease had nearly expired, and it could hardly
be that the only consideration moving to the
was the recognition by Aklona
that his tenancy for the next three months was
at will, paying the same rent. We think 1t is
a fair inference from the surrender, that
AkiUna thought he could not hold the com
pany bound by The johnson lease or he would
not have consented to relinquish his rights
under it, 1t is unphilosophical to say in the
face of the surrender of the lease signed by
Akiona which recites that the company dis
puted the validity of that lease, that il left in
force and effect an important and valuable
covenant moving TO Akiona from the company.
We think that Akiona should be held TO be
where his written deed places nina tenant
at will of the company subject 10 ten days no
lice.
But it is clear from the testimony that the
company gave him the privilege Of removing
his building.
He had abundant time in which 10 do this
IL Il. IL H..
right TO remove his fixtures must do scebefore
be quits possession.
Akuna cannot claim that he had not rea-
sonable time for he stipulated that lie would
vacate the premises in ten days after notice to
quit. We find no evidence that he attempted
10 move his building. Failing to exercise this
privilege before his interest in the land ex-
pred he could not do SO afterwards, because
the right to possess the land and the fixtures
rs part of the realty vested Immediately in
he landlord.
Taylor's Landlord and Tenant, sec. 55I.
The Judgment below should be reversed
and judgment now entered for the defendant.
A. S. Hartwell for plaintiff; w. r. Castle
-or defendant.
Honolulu, May 20, 1885.
DISSENTING OPINION or AUSTIN J.
In this case l refer TO and adopt the opinion
II the Court below, except in so far as the |
tame may be added TO, or modified by what |
low say. Henry johnson was the acting man
lger in charge of the defendant, owning large
sugar plantation, consisting of mill for the |
manufacture of sugar, and many hundreds of
Icres of land situated at Kohala, Island of |
Hawaii. The office of the corporation was at |
Honolulu, Island of Oahu. Books of account |
we're kept at the plantation, but it's leading |
Ulcers, including its President, Treasurer and |
Secretary resided at Honolulu, and the corpo-
alton books were there kept. Necessarily the |
PRACTICAL business and working of the planta-
ion was left in the hands Of the manager. |
The multifarious and extensive duties thereby
levolving upon such an officer are well known. |
Doubtless Henry johnson, as such manager, |
vas the general agent Of the company. See |
story on Agency, Sections IL, SO.
The premises in question, prior 10 the three
ears lease thereof, executed by johnson to
he plaintiff, had been occupied as leasehold |
t Sl2 month, the same rent rs that agreed
o be paid by said three years lelse Yearly |
eports of rents received at the plantation, in
luding rents from Akiona, but not naming
iim, were sent to the corporation officers. The
and let was small; the interests involved in
he lease were unimportant for such COM
any, and were not unusual. think johnson
cted within the apparent scope of his author
", and that the lease was binding in favor of
he plaintiff who had no notice of any bylaw
equiring the signature of the President and
ecretary to written documents.
l refer to Crowley VS. Genesee Mining Co.,
5 Cal, p. 273, where an important mining
ontract was executed by the President and
Ianagcr of mining corporation, whose com
any Office was in San francisco, far away.
&c also Story on Agency, Sec. So. In that
use the plaintiff recovered.
he right TO recover all that the plaintiff asks
ere, can also be sustained as OF the nature
on estoppel ia pals.
off a man, supposing he has an absolute title
, an estate, should build upon the land with
&c knowledge Of the real owner, who should
and by and suffer the erection to proceed
ithout giving any notice Of his own claim, he
ould not be permitted to avail himself Of
ich improvements without paying full COM /
ensatiou therefor {
SIory's Eq. Jur. Sec ass.
The act of johnson, who was 10 charge of the &
operiy of the corporation, in permitting
kiona 10 erect house on the land even t
ough this might be in excess of his author
: as manager of the plantation, was of such !
character as would authorize the plaintiff. c
norant OF tue bylaw, TO believe that he had I
ch authority, and tie corporation would be t
topped TO say that it did not know that the d
use had been put up. The local directors i
so must have known it. =
IL L.,