The Hawaiian gazette., 1886-08-17
Supreme Court of the Hawaiian Island So.
In Banco. July Term, 1856.
JON; NJ. HOMER VS.. CLAUS sPRrckErs.

BEFORE JUDD CD. MccULLY AND PRESTON, J. j.
Opinion Of he Court By PRESTON.
On exception to the ruling of McCully j. on
trial.
This is an action of assumpsit and was tried be-
fore McCuly ]. and a foreign jury, at the last
April term, when the plaintiff was nonsuited.
The plaintiff claims the sum of s9l,902.82 for
damages accruing TO him for a breach of contract
as set out in the declaration.
The declaration states that the defendant,
the 18th January 1880, agreed with one William
Y. Horner, that in consideration that said w. Y.
Horner should, for the term of seven years there
after plant each year, at least 200 acres of sugar
cane for the defendant upon the Island of Maui,
upon certain lands designated by the said agree
ment, and cultivate, irrigate and strip the said
cane, and deliver the same to the defendant dur
ing the seasons when the cutting of cane is going
on, and when the defendant should be ready to
receive and grind the same, and perform other
covenants set forth IN said agreement, the defend
ant would furnish to said William Y. Horner from
defendants upper ditch such supply of water as IN
the opinion OF the defendant his agent should be
sufficient for the said " y. HOrer to carry ont the
terms of SAID agreement, and in case of breakage
of said upper ditch of excessive drought IN the
vicinity of said ditch or if from any other cause
the water should be low therein, the defendant
would furnish said w. Y. Homer, from such ditch
such quantity of water as should be the fair pro-
TO distributed TO Nun Tor the irrigation
of the said land, IN the opinion of the defendant
or his agent, regard being had to the quantity of
water flowing in said ditch and the quantity of
land to be irrigated thereby. And that the de-
PENDANT would grind and manufacture said cane
into sugar, and deliver to said W. Y Horner one
half of said sugar during the first year of said
term, and one third thereof thereafter.
The declaration then alleges an assignment by
w. Y. Horner to the plaintiff, with the assent of
defendant) of undivided half OF his interest in
said agreement, and that thereafter, with the
knowledge and assent of defendant, the interests
of said w. Y. Horner and plaintiff we're divided
and the lands cultivated separately.
BREACH:-That from and after the fourth of
March, 1885, the defendant did not furnish for irri
CATION of said land planted and cultivated with
sugar cane separately by plaintiff, such supply of
water from defendants said upper ditch or from
any other source, IN the opinion of defendant
has agent sufficient to enable the plaintiff OcarYy
out the terms of said agreement applicable to
him, and that there was no breakage of said up
per ditch, or excessive drought in the vicinity
thereof or any other cause whereby the water of
said upper ditch was low during such time as the
defendant failed to furnish sufficient water as
aforesaid, whereby the plaintiff sustained dam
ages, etc.
Averment of performance of conditions etc.
At the trial the agreement was produced and it
contains the following stipulation:
I'll During the term of this agreement said party
of the second part, wv. Y. Horner) shall during
each year of the term created by this agreement
seed and plant anew, at least 200 of the land
described, with sugar cane, unless the so doing
shall be waived in writing by said party of the
first part" (the DEFENDANT
No evidence was given of any waiver in writing
of this part of the agreement, but evidence was
given by w. Y Homer, that "by the earnest solici
tation of the defendant, we planted 500 acres in
stead of 200 first year. also that defendant and his
superintendent and manager did not object to
the plaintiff cutivating rattoons instead of plant
ing anew.
The plaintiff gave similar testimony and it may
be taken as proven that the plaintiffs cane suf-
fered from an insuficiency of water.
The plaintiff admitted that except about sixty
acres (being all the land he could obtain
was planted after the first year.
The defendants agent and manager was not
called by the plaintiff.
At the conclusion of the plaintiffs case counsel
for defendant applied for nonsuit on the follow
ing grounds:
ist The plaintiff on his own showing, has not
complied with the contract by planting anew two |
hundred acres OF cane each year, or shown any |
consent IN writing for modification Of the con |
tract in this particular.
ID. Plaintiff has not proved that defendant has |
not furnished sufficient water. in the opinion of
defendants agent to enable him to carry out the |
terms of the contract.
The Court nonsuited the plaintiff, who duly ex-
cepted, and the exceptions were argued on the 10th
inst
S. B. Dole iona. Austin with him) for plaintiff |
The contract in this case is continuing con- |
tract to extend over seven years. the planting of |
the 200 acres year IS not condition precedent |
to the furnishing water for what cane is on the |
ground, the cane growing during second year |
should be watered during that year until harvest |
1t is not universally true that party to con- |
tract who has himself failed to perform some of |
its provisions, is thereby precluded from recover
ing damages for breach committed by the other |
party. The question in such cases is, whether the
stipulation which the plaintiff has failed TO observe
was condition precedent to the performance by |
the defendant and whether it is of that character
or not, depends upon the general scope and inten-
ton of the agreement to be gathered from its |
several provisions.
Upton VS.. Feitner, 20 n. Y. 423.
The furnishing of water Is not dependent or |
conditional upon the planting of 200 acres anew |
each year, and if by reason of failure of defend |
ant to furnish water the plaintiff has suffered loss
he may recover damages for the breach.
But in this case the plaintiff has notin fact COM
mitted any breach, the contract on his part has
been substantially fulfilled by planting within three
years. the whole of the 600 acres, except the small
portion occupied by the defendants buildings |
which he refused, on request to remove, and If the
cane was not divided into three annual paintings,
il was because the defendant urged the doing of 1t
in advance of the time stipulated in the contract,
and his act in so urging the planting operated as
waiver of the condition OF two hundred acres I
year.
Counsel further argued that the acts of defend
ant an is manager in not Directing to the rat
toon CO. operated a waiver, and that party
who has prevented a performance shall not be al
lowed to avail himself of the non performance he
has occasioneG.
The plaintiff in good faith, relied upon the fairly
implied promise that if he would put in as much
cane as he could the first year, the so doing should
not be taken advantage of by the defendant to his
injury.
tiff to go on after the time limited the second year,
1881 and thus waived the forfeiture which he
might have claimed.
Sinclair VS.. Talmage, So Barb. 604.
The evidence shows substantial fulfllment of
the condition to plant 200 acres each year by plant
ing the whole 600 acres within the first three years
Al.,NA