The Hawaiian gazette., 1886-06-08
Aawaiialr 6azettR.
TUESDAY. JUNE s. lsse.
Supreme Court of the Hawaiian Islands
In Banco. April Term, 1856.
II. S. TnEeIoAN vs.. H. F. BERrLENAN.
nrronr JUDD G. ). mcU1Lr AsD PRESTON -.

og,u;on Of he corrt b. mecrLLYL

1 -
counsel make the following stipulation:
"The points Of law involved herein anc
which are hereby submitted to the Court II
banco, are
Ca) Does the record show that said plaintiff
subsequent to the execution Of the lease OF
which this action is based, and prior 10 De-
cember LIST, 1885, by valid contract with de-
PENDANT or his privies, waived his right 10 col,
lect rent under said lease upon the 26th day
Of the mouth? and if so, what day Of the month
was substituted therefor?
(b) Does the record show that any distress
was levied by plaintiff on the premises, suth-
cient In law to release the defendant from his
covenants in said lease contained!
(c) Does the record herein show that Mr..
Justice Preston, in giving said judgment,
erred, in that be found that there had been no
surrender Of said lease by defendants privies,
to plaintiff, prior to the institution of this &C
ton? or that said Justice erred in rendering
judgment for the plaintiff herein? or that the
amount for which such judgment was rendered
should have been different? and if SO, for what
amount should it have been, and for what
amount shall final Judgment stand?
3rd. Il is further agreed that for the pur-
pose Of this appeal, the record herein shall be
considered TO consist Of the several exhibits,
the minutes OF evidence taken by said Justice
and the clerk respectively, at the trial before
said Justice, and the written opinion or decis-
ion Of said Justice on file therein"
AS the decision of Mr.. Justice Preston. sit
ting as Intermediary Judge, is to be considered
and as it states the case, we quote it;
OPINION or PRESTON J.-"Action Of COW
enant for 5000, being two months rent reserved
by lease Of Saratoga House from the plaintiff
to the defendant.
The lease was assigned by defendant to
Steiner, by Steiner 10 Graham, and by Graham
to Krouss who became bankrupt, I. r. Lucas
being appointed assignee.
The defendant insisted that the term had
been surrendered by Lucas to the plaintiff by
operation of law, and that the plaintiff
had discharged him by accepting Krouse as
his tenant, and cited Dodd and Davies vs.
Acklorn, Man. and Cir. G72, Thomas VS..
Cook, Barn. and Aid. ll9, and Amory VS..
Kannafiski, 0 Am. Reps, 4l9.
He also commended that, although by the
lease, the rent would commence from 26th of
the month. yet the plaintiff had waived five
days rent and had agreed to take rent from tie
first Of the following month.
In considering the Testimony l am Of opin-
ion that such agreement or waiver is not
proven And l also find that the plaintiff did
not release the defendant from his covenant
by collecting his rent from Krouse or the other
tenants or Otherwise.
Tie other question as to whether the lease
was surrendered by operation Of law is more
important The phrase "by operation of law"
is not, as ] conceive, appropriate, it is men,
toned in the English Statute of Frauds as one
way in which lease may be surrendered, but
this Section is not adopted by our statute, l
think the more correct expression would be
surrendered in fact
The cases cited on behalf of the defendant,
do not, in my opinion, sustain the defendants
contention, but on the contrary, if properly
considered tend TO negative it.
From the whole testimony am Of opinion
and so find, that although the plaintiff might
have agreed to take the lease and premises
back from the assignee, yet that he altered his
mind before the agreement was perfected by a
legal surrender by deed as promised, and as
he never took possession of the property, but
returned the key TO Lucas, the term was not
surrendered and the defendant is liable.
He will have his remedy against his assignee
Steiner, on his express covenant.
Judgment for plaintiff for 5000 and costs.
The action being covenant there will be no
attorneys fee"
Regarding the point Of waiver of right TO
collect rent on the 26th day of the month and
the substitution Of another day therefor the
testimony is
OF Mr.. TreglOan:-'I was paid between the
LIST and 10th of the month as convenience;
was not paid on the 26th day of the mouth
after the first instalment, Rent was due on
the 26th of every month, but parties having
lease asked to pay from LIST to 10th as a con-
venience.
The Police Court record shows that suit was
on the 27th Feb, one day after
the second months rent was due.
Jacob Steiner testifes that be had lease
Of the premises for some time. Paid rent TO
Tregloau, always from the LIST of the month in
advance, net always paying on the first day,
sometimes few. days and later.
Bertleman, defendant, testifes The first rent
| paid was on the first or second Of September
for the month Of September, in advance. His
receipt was burnt with bis shop The lease
was made on the 26th, Tregloan wanted few
days to move out, and my rent was to COM
mence from the first. This was an arrange
ment.
Regarding the receipt, Mr.. Bertleman testi-
ties. / cannot tell the exact words of receipt |
Ii meant TO convey impression that it was for |
one months rent from LIST September, think |
the receipt read one mos rent from date and |
my agreement, previous to signing lease was
to take possession of the place from the first. |
The lease in question is dated on the 26th |
Of August, executed and acknowledged on that |
day, and expresses no other time for beginning |
TO rent. 1t must therefore, be held to be a |
lease from the 26th. The testimony above |
cited does not support waiver of the written |
term. rregloan contradicts Bertleman, whose |
evidence of the tenor of the first receipt must |
be considered vague. The rent may have been |
paid for convenience on the first, but it is also |
in testimony that it was paid for convenience,
from the first TO the tenth.
As 10 the second reserved point, whether
lie record of testimony shows the plaintiff had
the goods of a subtenant and thereby
released defendant from his covenants in the
ease. The testimony shows that Tregloan,
ust before an auction sale of effects of a ten
INT, demanded payment Of rent due him, and
vas paid by the auctioneer out Of proceeds,
The testimony further is that Berileman had
eft Tregloan TO get his rent out of a success
non Of subtenants, if he could. But the de-
nand made as above, cannot be considered a
IIstralnt. The Act of 1864, found at page 277
i Compiled Laws provides for making a dis
raint-goods distrained must be removed from
be premises, and after fifteen days public ad-
may be sold-no such steps were
AIKEN by the plaintiff He must be considered
S merely having made demand, acting as
be defendants agent.
Respecting the third point of the surrender
the lease and the acceptance thereof, Mr..
Estce Preston's recital Of the facts is sufi-
lent and supports his conclusion.
The remaining agreed point seems to be de-
,rmined by our finding on the first point sub
lifted. The judgment must be for two hun
red dollars.
Ashford & Ashford for plaintiff; S. B. Dole
II defendant.
Honolulu, May 81, lss6. 1
upremo Court of the Hawaiian Islands,
In Baneo. April Term. 1856.
BEFORE JUDD, c. J., M'ouILT AND PRESTON, J. J.
oNoMBA SUGAR Co. VS.. Il. C. ASDF.H. :
AUSTIN. t
Opinion Vf tie Cont by WCULLT. 1
A bill Of complaint was brought before Mr.. !
lstice Preston asking for an injunction
,ainst tue defendants to restrain them from
with the Onomea Plantation till
c further order of the court, and to command P
EN- to at once deliver up to the plaintiffs
books Of account, contracts and other pro- o
rty Of the plaintiffs An Injunction to that II
ect was issued October 10Th, and served on
e defendants at Hilo October 22nd. 1t was II
forwards made fo sunesr 10 Tho ss;d ;,s,;, ! o