The Hawaiian gazette., 1885-08-26
A1aiuaiian O5azttte.
wrnNEspAY. AUGUST 20 1855
Sr,r,1,o Court Of the HnwniiRn IsIands-
In EQuity.
TIE WA1ASAE Co, vs.. HAWAIIAN BELL
TELEPHONE Co

refer TO my oplnlon ~ ~. ~ -
for statement Of the bill. The amend
ments there suggested were made ana 'ne
respondent has answered
After hearing the proofs presented ana ~
arguments of counsel, 1 think the oill
should be dismissed
There was contract made IN Wrluls
between the parties on the 2Srd, August
1882. as follows:
THE undersigned hereby agree to pay
IN the Hawaiian Bell Telephone Co, the
sums set opposite TO our names beng pro
norton towards building Telephone Line
from Honolulu to different places men
toned below; also to pay rental OF ten
dollars Der month for the use OF lnstru
ments which the Hawaiian Bell Telephone,
Co. guarantees to keep in order and will
enable MS TO communicate at any time
with ANYBODY connected with the Central
system of the Hawaiian Bell Telephone
Company"
Five hundred dollars,
fSignedl h. A. Widemann, Wuanae
One hundred dollars,
(SignedD James Campbell, Honolulu.
Two hundred dollars,
(Signed) NJ P. Robinson, Walmano and
Hoaeae
Fifty dollars,
tSignedl H. L. Whitney and {. ii. Judd.
Seven hundred dollars,
fSigned) Hawaiian Government per j..
b. Bush. Minister of Interior, 3 Sta
tions. EVA, Waianae and Waialua.
(Signed) J. l. Dowsett,
Station Moanalua.
Two hundred dollars,
" Station NEkilua.
One hundred dollars,
(Signed) j, P. Mendonca, Mokulela
plains.
BY this the subscribers" engaged to
pay rental of ten dollars per month Tor
use of instruments. This must mean Tor
each station-for where more than one
station is contemplated they are specified.
The subscription of $500 by the Waianae
Co, was announced by Mr.. Widemann its
President at meeting Of the stockholders
OF lie defendant corporation before 1t was
voted to put up the Wmanae and Nalalua
line. 1t was paid on May 23rd, 1888. The
construction of the line was begun IN
January. 1SSS.land finished in June .Messrs
c. o. Berger and II. A. Widemann, the
only witnesses for plaintiff say that the
arrangement or stipulation was that the
Waianae Co, should have two stations on
the line, Of which, the one at the manager 5
house was to be rent free. But Mr.. Ber
ger says that this arrangement to have the
use Of one instrument free was made while
the line was being constructed. Ii is
therefore apparent that this concession
was not part of the original contract,
as a proportional contribution to the e1
pense of erecting the line, the Telephone
Co. to keep the instruments IN order and
the subscribers to pay SO per month for
their use. The privilege of one lnstru-
ment free was obtained at least five months
later and / cannot consider that 1t was a
part of the original consideration. lmuch
doubt if the rules of evidence would allow
written contract to be thus enlarged by
parole Moreover l think this contract
contemplating d continuance Of the service
for wears Is within the statute Of frauds.
There has been no part performance OF
this particular ingredient Of the contract
with knowledge on the part Of defendant
/ find no evidence that this concession
of one instrument free was acquiesced IN
or ratified by the defendant corporation.
At the time It was alleged to have been
made. Mr. Widemann was President, and
Mr.. Berger, secretary OF both the plaintiff
and defendant corporation. This requires
that in thus dealing with themselves the
utmost good faith should be used and
shown. There was nothing on the minutes
Of the Telephone Co., or on Its record OF
instruments to show that the telephone IL
use at the managers house was not to be
paid for. Reasonably soon after the fact
was discovered that il was to be rent free
it was disavowed by the defendant corpO
ration
Without discussing the remaining point;
made, my conclusion Is that the use of tht
telephone at the managers house by the
Waianae Co.. free Of rent, was license
without consideration and hence reyocable
and therefore dismiss the bill
A. S. Hartwen for plaintiff; f. NJ. Hatcl
for defendant.
Honolulu, August Sth, 1885.