The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1886-08-10


the purchase price of the premises to the Wood
lawn Dairy Co. to about So, 800. am convinced
by Mr.. A. Fl. Smiths testimony as well as BIZ the
acts of Mr.. Dillingham; in building the barns i'm
medIately after January 1st 1884 and putting the
cows of the Woodawn Dairy there before he had
procured title to the place, that he intended
the purchase IN the first place to be for
the Woodlawn Dairy He has thus put il out of
his power to reinstate the vendor in the position
he was in when the negotiations were concluded.
The defendant contends that as the additional
land to make up go acres cannot be furnished, he
Is entitled to have an abatement in the contract
price OF $4,000, which for $50 acres would bring
the price of one about $28 and Mr.. Dillingham;
having only received 25S acres, at S2S he would
have to pay something over $1,000 for the bare
land and an additional sum of say $500 to $4,000,
for the houses and improvements that stood on
the land when he bought it, equal in all to about
S9OOO or one half of the price he originally agreed
to pay for it.
think it would be harsh and decidedly inequi-
| table to make Mr.. Wood sell his land for half
what he expected to get for it and what he valued
1t at and for all that appears it is reasonably
| worth.
The case of The Earl of Durham VS.. Legayd is
we'll in point here. This was a case where A
agreed to sell b an estate which was supposed by
both parties and was stated in the agreement to
contain q, $50 acres, but in fact contained only
1874 acres and it was held by Sir John Romilly
| Nj. K. upon bill filed by the purchaser that he
was not entitled to specific performance of the
contract with compensation. In the case, said
his Honor, of Hill rs. Buckley II Versey 1874 which
IS usually cited upon these occasions, Sir William
Grant laid it down that "where there is less land
than was agreed to be sold, the ordinary mode of
settling 1t is to ascertain the quantity and take it
| rateably If that were done here, the plaintiff
would get an estate which he had intended to buy
for e66,OOO for about $4,000. If that principle
were to be followed IN the present case it is clear
| should be doing great injustice. l am of opinion
that this is case simply of mistake and that the
purchaser Is not entitled to any compensation,
| The plaintiff must elect whether he will perform
| the contract without 0r hav he
! bill dismissed" "a Law Journal (Ch. N. S. $780,
We have not this report but find the case in End
Leading Cases in Equity, by White and Tudor S.
! think the case before me is no different for the
reason that the vendor and not the purchaser
seeks specific performance, for the purchaser in
| his answer, which might have been cross bill
asks just this relief.
| In the Earl of Durham's case the land had in
all probability not been taken possession of by
] the purchaser nor improved by MIN, so a dismis-
sal OF the bill If the purchaser so elected would
! annui the contract and leave the parties where
! they stood if the true quantity had been kno Sn
AS have said before our case is complicated by
the improvements put on the premises by the de-
PENDANT and by its sale to the WoodIawn Dairy
Co. 1t would be inequitable to compel Mr.. Wood
| TO take his land back and pay the full amount
laid out by Mr.. Dillingham; on improvements for
which Mr.. Wood has no use and which were
erected for the special use to which the premises
have been devoted by defendant during the past
two years. 1t is not at all probable that these i'm
provements enhance the market value or the place
10 anywhere near their cost. On the other hand
to resclnd the sale, defendant to take off his i'm
provements, would be unjust to defendant and
entail a great and useless waste of property
Each case of this character must be decided ac-
cordlng to its own peculiar circumstances.
After much reflection l am of the opinion that
the defendant should be allowed to elect whether
specific performance of the contract shall be de-
creed without compensation since he has sold the
premises COR double that he contracted to nav for
1t, or whether specific performance shall be
refused and the agreement of sale annulled the
plaintiff to pay defendant the amount of the
enhanced market value of the premises by rea-
son OF the permanent improvements placed thereon
by defendant, less rent, to ascertain which a
reference may be had to a master
On the question of the power of the Court to
award damages where specific performance of the
contract is not decreed refer to MizkmaR vs. Ord
Cag LOG Mass 232.
Court to be divided. Decree accordingly. Kin
ney Peterson and w. A. Whiting for plaintiff
S. B. Dole and F. NJ. Hatch for defendant,
Honolulu May 1st, 1886.
From this decision the defendant appealed,
which appeal was heard on the II til inst.
). b. Dole for the appellant. There is an i'm
portant variance between the allegations in the
bill and the proof. The defendant was told there
was $50 acres he bought the faith of the repre-
sentatlon; ne required the land to enlarge bust |
ness. What he could get for it is not the questions
he bought $50 acres and should not pay the full |
price for less than one half; he improved the |
pIOpoIlN' dt Tue OF Ine ulSCOV6rY OF the /
deficiency he could not withdraw, he owned seven
elghths of the Woodlawn Dairy stock, and the
capital was increased from $4,000 to $100,000 he
had put improvements cattle DC. upon the land to
the amount of $4,000; by putting up the capital,
the stock was deprecated to SIS. The plaintiff
Is responsible to make up deficiency. Deliberate
fraud is not charged, but wilful reluctance to
ascertain quantity, he had deeds in his possession
for over twenty years, and could have ascertained
the area if he had looked at them. 1t is general
principle that the grantor is responsible for deci
ency. The caseof Earl of Durham VS.. Legard is
contrary to the authorities and should not be act
ed upon here. The modern English decisions sIB
agalnstIthe general principle.
W. A. Kinney for the complainant.
The defendant has the advantage of the plain
tiff he asks for affirmative relief as if he were plain
TIT. Technically this is an executory contract;
practically it is executed.
The case is what relief is appropriate. If fraud,
the remedy Is positive. 1t is of mutual mis-
take; the defendant is to be recouped what he has
actually suffered.
Constructive fraud is raised here but not below
1t is said plaintiff should have discovered area
from perusing title deeds. The deeds were handed
to defendants solicitor to prepare agreement; he
might have ascertained area. What damage has
defendant sustainedf Shows he has lost nothing
hu sold the property according to the exact meas
1rement for more than the contract price. He has
settled the value himself (Belknap vs.. Seely ubi
SUPP, Earl of Durham VS.. Legard is precisely in
point
w. A. Whiting ON same side The Corporation
issued the 100000 shares, the defendant Fifty
seven Thousand five hundred dollars worth was
issued for the property including improvements
in6 stock: $4,000 was paid to the defendant for
this land: he has made money out of it.
Dole in reply. The purchase by the Corporation
mas nothing to do with the case the defendant ex-
Dected $50 acres, and it would be unjust to COM
pei him to take less than half for the full
price. Abundant authorities to show that pur-
chaser should only pay pro rata; No one except
plaintiff should be punished for his loOseness: ne
should only be paid for what he receives. The
Woodlawn Dairy interests are not to be sacrificed
lere.
By THE CoURT:-This case is complicated by the
DEALINGS of the defendant with the land in mes