The Hawaiian gazette., 1886-08-17

Williams decided that half of the water was enough
for rattoon, there is nothing in the evidence to
show that Williams thought there was enough to
enable plaintiff to carry out the terms of the con-
tract, and the defendant should be required to
show this affirmarively.
Mcclure VS.. Briggs, (Vermont) Albany L. j.,
March 70, 1886, p. 223 and cases there cited.
Paul Neumann for the defendant.
Article IL of the agreement IS condition prece-
dent.
Performance is alleged but not proven.
An attempt to prove waiver was made but 1t was
not proven. It was not pleaded, and cannot be
proved If allegation is made that the conditions
precedent are fulfilled.
Ratcliff vs. Pemberton, Esp. 30.
Higgins VS.. Lee, 16 Ill. 800.
Gritty on Contracts, Sec. 1888.
Cruckwit VS.. Fletcher, Hurls tand n. S93.
The contract is of necessity in writing, falling
within the statute of frauds. Such contract can
be rescinded, and RECESSION proven by parol testl-
mony, but an alteration of the contract, creating
new obligations, in fact making a new contract,
must be in writing, within the statute.
entity on Contracts 155.
Moore VS.. Campbell, % L. j. Exch. 80. IS. G..
&c, E. L. and Z. 524.
The contract for the planting anew of 200 acres
every year. could only be waived in writing, and no
waiver in writing was produced.
BY THE CoURT-In this case no claim of forfeit
ure arises and therefore tho arguments and au-
thorities used and cited by plaintiffs counsel on
that point do not require our consideration.
The case was deliberately argued on behalf of
involved are quite elementary.
We are of opinion, and the plaintiff, by his de-
claralon states that the performance of article IL
of the agreement is a condition precedent.
tits unnecessary to consider the question whether
the defendant has waived the performance of the
condition precedent or not, because if there were
any evidence of such waiver, by parol (Which we
greatly doubt) it would not affect this case.
The plaintiff has averred the performance of all
conditions precedent, and has not relied on any
such waiver as an excuse for non-performance, and
therefore, according to all the fundamental rules
of pleading he cannot be allowed to prove any such
excuse or waiver.
The contract declared upon, is contract re-
quired to be in writing, and can only be waived in
writing. 1t is true that performance of a writ
ten contract may be varied by paro, but this can
not be where the contract itself would not by the
statute of frauds have been valid if made by paro
and we therefore consider the defendants conten-
ton on this point to be correct.
See Marhall VS.. Lynn, Meesou and Webs. ITO,
and cases cited by defendant.
Blood vs. Goodrich, 8 Wend. g.
We are therefore of opinion that the nonsuit was
properly ordered on this point.
On the second ground we are also of opinion
that the nonsuit was right.
The burden was upon the plaintiff to prove that
the water supplied was sufficient in the opinion
of the defendant or his agent" He has alleged it
in the declaration and it is for him to prove it.
He contends that the defendants agent did not
act in good faith. This is contrary to his aver
ment, and could not be allowed to be proved under
the pleadings.
See Worsley vs. Wood 6 L. II. 10
Butler vs.. Tucker, "a Wend. AL.
Walker VS.. Orange, 16 Gray 1913.
Walker VS.. Tirrell, 101 Mass. PSI.
The exceptions OverrHled with costs.
S. B. Dole and iona. Austin for plaintiff; Paul
Neumann and F. NJ. Hatch for defendant.
Dated Honolulu, July 81, 1885,