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

/ therefore,
The said party Of the first part, in consider
alton Of the discontiRnance and withdrawal Of
said suit, doth hereby surrender the said lease
and relinquish all claim TO said premises or
any part thereof by reason of the said lease,
or by reason Of any right or claim arising
tlereout or tberefrom; and doth hereby admit
all of the claim Of the plaintiffs the Kohala
Sugar Company in and 10 said premises and
that the said party of the first part is tenant at
will only Of the same, and at any and all times
Oh ten days notice to quit, shall and will quit
and surrender possession thereof TO the said
party Of the second part and will on demand
pay up all arrears of rent and thereafter make
| payment Of rent from time TO time de-
handed.
And the said party Of the second part in
consideration Of the aforesaid doth hereby
agree TO discontinue and withdraw tue said
action Of eiectment.
In witness whereof the said parties hereto
have caused the due execution thereof by the
attachment hereto of the corporate seal of said
company. and the several hands aud seals Of
said party of the first part, ani names and
seals of the President and Treasurer of said
corporation"
In Rich VS.. Lord, is Pick. 1925 Z, heard
in 1886, Shaw C. J. says:
at is now general rule in constituting re-
leases, especially where the same instrument
is to be executed by various persons, standing
in various relations, and having various kinds
of claims and demands against the reloasee.
that general words, though the most broad
and comprehensive, are TO be limited To parti-
cular demands, where it manifesily appears,
by the recital, by the nature and circunl-
stances,,of the several demands, to one or more
of which it is proposed to apply the release,
that it was SO intended TO be limited 10y the
parties. And for the purpose of ascertaining
that intent every part of the instrument is TO
be considered"
The release in this case was from plaintiff
and Others as general creditors severally, OF
John Erskinc, Jr., aud Madison d. Erskine,
who assigned property 10 pay their debts The
plaintiff besides held notes secured ny
mortgage ON property assigned which were
not specially secured by the assignment; The
plaintiff takes an interest under the assign
ment aud executes, with tue other creditors, a
release saying that they 50 severally release
said john Erskine, Jr. and Madison d. Erik
skine of and from all aud singular their several
debts and demands against them of every
name and nature"
The Court held the mortgage and notes not
released.
In Lyman Judge VS.. Clark ct al . Mass.
23i-s, decided in 1912, where the consider
alton of the release was SIS and the additional
sum sought to be released was fifty pounds
secured by will of Caleb Clark, the Court
say:
''The words used in this release ought not
to lie extended beyond the consideration.
Otherwise we should make q release for the
parties, which they never intended or contem-
plated. The whole instrument is to be taken
tor 1. III,
general and reasonable rule that more general
words in an instrument shall be restrained by
other expressions more limited in the same in
strument." And at p. 237 the Court quotes
from Bacon's Arrangement as follows:
That where there are general words all
alone III deed of release. they shall be taken
most strongly against the reeasor; but where
there is particular recital in deed, and then
general words follow, the general words shall
be qualified by the particular recital"
The language of the release was, eve do
each hereby acquit and discharge the said
Eleazer Clark from all demands we have
or may have on him by virtue of said Caleb's
last will"
The Court held this nc release of the fifty
pounds
In Mcintyre VS.. Williamson, Edro., Oh. r.
p. 3i7-S, decided in New York in 1881, where
for a consideration of 5000, demand for that
amount and also mortgage and bond for $3.50
were claimed to be released, the law was laid
down as above cited. The language of the re-
lease was ample to include the mortgage but
did not specify it.
See aIs2 Moore vs.. McGraIh, Cowpers, r., p.
8; H. r. II. Ruth Ke.likolani vs.. Commission
ers Crown Lands; Wliallvn vs.. Kaufman, 10
john, 81; jackson VS. Stackhouse, Cow, 1872
6; Coles vs.. HAYES, Johns Cases, New York,
2O3-4 and note 2; Blackstone's Con. 379;
Dewey vs.. Bordwell, Q Wend. 65.
The law olrelease being as above quoted, |
think that The plaintiffs demand in this case
was not released or intended to be released by
the surrender of May G. The consideration
hrst named was the discontinudnce of the
eJectment suit. Had that suit succeeded, as | |
have shown, the defendan mt could at most have |
recovered only the possession of the land, in- |
GLIDING the building, for the value of which |
this suit is brought. The demand for that |
value would have remained intact The lease |
had but three months and three days TO run. |
The plaintiff for his surrender of it received |
what might be considered by him nearly or |
quite as valuable-an indefinite extension of |
his possession, at the same rent at will, on ten |
days notice TO quit. He received nothing more. |
verbal right TO remove his erections was |
accorded to the plaintiff 1t was of |
little worth to him. He had no land proper
to move the building ON to. If the defendant
is right, the plaintiff intended to give up, for
the fiimsy title of tenant at will, OH ten days
probation, and chance to keep his easehold |
Tor three mouths, which might be deemed an
even bargain but also a sure demand for
1000. That demand was not mentioned in
the document nor can | believe that it was
or intended by the parties. The
according, subsequently. to Akiuna of the right
Of removal and his declining TO take advantage
OF 1t, and bis persistent asking for payment
for the value Of the building, as well as of his
interest in the fee of the leased land,
show that the parties did not intend the sur
render or release of the claim in suit Their
minds did not meet on that point The object
1f the paper was the surrender of possession
)f the premises and the substitution therefor
IF the tenancy at will And the words ere
inquish all claim 10 said premises or any part
hereof by reason of the said lease" followed
by the general words, Ct by reason of any
right CT claim arising lhereout or therefrom,
md doth hereby admit all of the claim of the
plaintiffs. the Kohala Sugar Company, in and
% said promises, and that the said party of the
irst part is only tenant at will of the same"
'annot be construed to cut off, without com
the plaintiffs claim in this action
which by the terms of the new tenancy it was
'vident nobody contemplated to be enforced
'efore the expiration of the tenancy at will.
For these reasons dissent respectfully from
he opinion of the majority of the Court.
BENZ. II. AUSTIN,
Justice Supreme Court.
Honolulu, May 20, 1885.
supreme Court of tho Hawaiian islands,
In Banco. April Term 1885.
,oNo AND KALAUkoA, BY THEIR GuARp1ANs