The Hawaiian gazette., 1885-07-01

chase with his attorney III nohoiuIu, ". "
Castle, Esq. and had requested, and sylvia had
agreed to 20 to Mr. Castles office, sign deed
and receive his money, but had neglected and
refused TO do so.
The answer of sylvia admits that he was in
formed by Mendonca at the time OF the sale OF
the land; of the agreement with Andrews, and
that he made the covenant to keep him harm
less. He denies the requests Of plaintiff that
he would receive the money and make the con-
vcyance, and AYERS that the plaintiff at first
informed him that Mr.. Castle would advance
the money, but subsequently that he declined,
and that plaintiff could not raise the money,
and he AYERS that be was ready and willing to
carry out the agreement, until, believing that
plaintiff had given up all intention of buying
the land, be had fenced and improved 1t, aud
enhanced the value of it, and had included 1t
in a mortgage by which money was raised for
these and other improvements, etc.
The answer of defendant Mendonca, admits
the agreement, which he says was made about
January, 1850, at the request of Andrews,
after comforting with his partner. Admits the
plaintiffs requests to him to convey as per
agreement, but says that he requested him to
wait until law suits pending between himself
and partner should be settled. And that sub
seQuent requests he referred to sylvia.
have not made full abstracts Of the bill and
answers, leaving the incidents OF the case to
appear by resume Of the testimony applicable
to the principal points involved.
Andrews, plaintiff, testifes that when the
litigation arose between the defendants, this
business was deferred at their request till the
division of the property should be made. By
the record in the case of Mendoncd rs. S.ylDd it
appears that the litigation commenced in JAN
uary, 1880, and closed in October. Andrews
testifes that two weeks after the close of the lit
igation he met sylvia who referred to the subject
Of the sale, and asked what he could do for
him, and that it was left for sylvia whenever he
should next 90 into town to 60 the law office
of W. R. Castle where the deed might be exc
cuted and he would receive the money. By
Andrews testimony nothing more was said
about the business till the early part of 1882,
when be met sylvia driving in break with bis
wife, when sylvia appears to have opened the
conversation by asking what about that land
we sold you-do you still wish it?" To which
Andrews answered certainly | do" That
sylvia asked if he would not take instead an
adjoining piece, and that Andrews said emo,
giving reasons why he preferred the first piece,
and that sylvia said, as he insisted on having
the land; he would be going to town in week
or SO and would 20 to Mr.. Castles Office where
Andrews said the money had been ready for
him for some time, and make the deed.
That the men next met January, 1888, at the
house of Squires in Honolulu, when Sylvia
asked Andrews to give up the bargain-An-
drews made no answer.
Sylva's testimony recognizes some inter
views with Andrews. He makes out that An
drews was not at any time prepared to pay for
the land, that he-Sylva-was quite DESTROYS
of realizing the money and was only waiting
till Andrews could pay him.
Mr.. Castles testimony is to the effect Of
Andrews having placed the agreement in his
custody and asked him to advance the money.
This Castle was willing to do. There was
nothing moved actively forward by Andrews.
Mr.. Castle did not speak to Sylva's agent, Mr..
S. NJ. Damon, whom he might see daily. Al
a late period, and when ho heard that Sylvia
was proceeding to improve the premises, he
spoke TO Mr.. Damon, who thought the matter
had gone SO long that Andrews had lost his
right.
Squier gives testimony to show that both
parties talked with him about the sale. sylvia
requesting him 10 speak to Andrews, and he
telling sylvia that Andrews depended on Castle
for the money, and there seemed difficulty
about getting it. Squire says that Andrews
used to make loans of him, one application he
had an idea was for the purchase of this prop
erty.
The testimony of Mr.. Damon is that By i'm
proVements On the land and in the neighbor-
hood, the land has risen in value. 1t was
safely worth now $1,000.
There is no precise rule for the determine
ton of cases where specific performance Of
contracts to sell land is asked. The case of a
defendant is better than that of plaintiff, that
is, it requires much less strength Of case on
the part of a defendant to assist bill than on
the part Of plaintiff TO enforce it. The right
is not absolute, but in the sound discretion Of
the Court. Story's Eq. Jur, Section 742 and
Section 769.
The impression made upon my mind by all
the testimony, of which but a small part is
quoted above, is that the plaintiff has commit
ted laches which should bar his rights. He
seems to have left everything for sylvia to do.
At long intervals he meets him and asks him
TO 60 to his attorney in town and do the bust
ness. He had no money on deposit then, and
l think syria was justified in hie doubt if he
should get 1t. The contract calls for payment of
the balance at the rate of i've dollars per acre,
but there is no evidence that the exact area
had been determined and that Mr.. Castle had
in his hands the data for drawing the deed and
and ascertaining the precise sum due on the
land. When the parties met in town at Squiers'
house and the business might have been closed
by tender of the money and deed, nothing
seems TO have been done. The conduct of
Andrews was not that of one who is ready and
DESTROYS to carry out the contrnct. Itdoes not
seem 10 me to be equitable that the land should
for SO long time be bound by contract of
sale which might have been completed
promptly after it was made. Several years
pass blythe land more than doubled in value
the owner raises money for improvements in
part by mortgage of this piece. 1t seems
to me to be sound and wholesome rule to say
that person in the plaintiffs position should
not allow his rights to lie in allegiance for such
a length of time. He stands ready to play
fast and loose. If the land shall rise in value
he will claim it. If it falls, he will let it alone.
he is not bound to purchase.
The plaintiffs bill is dismissed.
L. A. Thurston for plaintiff; A. s. Hartwell
for defendant
Honolulu, June goth, 1885.