The Hawaiian gazette., 1886-11-02
Supreme Court of the Hawaiian Islands,
In Banco. April Term, 1856.
MARX P ROBINSON VS.. L. g. SREsovcH,
j. NJ. GRAY AND r. LEvEY: LYONS AND
LEvEY GARNIsHEE

BEFORE JUDD C. J. AND M'CULIT AND PRESTON j. J.
Opinion Of the Court per JUDD C. J.
This is an action of assumpsit to recover
the sum of $500, for price of certain bana-
mas, sold and shipped by plaintiff to de
PENDANTS in San Francisco.
The verdict of the Jury was for plain
tiff for amount claimed with interest. The
case comes to us by exceptions of the de
PENDANTS as follows:
l. "The defendants excepted to the ad-
mission in evidence of certain receipts for
the bananas, shipped per steamer, to R.
Levey, San Francisco, signed in Honolulu
by one Henry Davis on the ground that
there was not sufficient evidence that Davis
was defendants agent" 1t was an i'm
portant question of fact in the case, for
the jury to pass upon, whether Davis was
the agent of defendants; for if he, as their
agent accepted the bananas, they would
be held liable.
Upon this there was much evidence adj
duced by plaintiff. But, as it was left to
the iuryI to say whether they were salts
fed from the evidence that Davis was de-
PENDANTS agent, his receipts in this ca
pacity were admissible, otherwise the evi
dence of his agency would be without
final effect
IL. The Court was requested, by de
PENDANTS counsel, to charge: If the jury
find that the plaintiff consigned to defend
ants the bananas, the price of which this
action is brought to recover, and that there
was no obligation under the contract. for
defendants to receive them, then those
shipments were made at the exclusive risk
of the plaintiff
The Court could not. in view of the evi-
dence adduced, justly charge in the terms
as requested, for as above intimated, there
was evidence tending to show that the
bananas. for the price Of which this action |
was brought, We're accepted and received |
from plaintiff in Honolulu, by defendants |
agent, and by him shipped to defendants, |
in the same invoice with bananas pro
cured from other sources, and both lots I
We're intermingled and taken to defend |
ants store in San Francisco, and sold in
so it was impossible to say
what the bananas from plaintiff realized
The Court properly charged, that, under
such circumstances, if the jury found that
hat the plaintiffs bananas We're good mar
letable bananas, properly packed, the de-
aendants were liable for the highest price
obtained for any of the lot
III. The Court was requested to charge:
If the jury finds, that defendants exer-
Used reasonable care in the preservation
nd disposal of those (plaintifss) bananas,
nd that no more was realized from the
ale thereof than is stated in the accounts
endered by defendants to plaintiff, they
must find for defendants" The Court !
harged, that, ''if the jury found that de
endants took the same care of plaintiffs
ananas, that they did of other bananas,
nd took the same care to obtain the best !
rice, and that the price they obtained was
be best that could be obtained, then they
lust find for defendants" We think the
curt was right, especially in view of the :
barge already given above.
If defendants had mingled plaintiffs
Gods with their own, so that they could :
OF be distinguished, they We're bound to
xercise the same care in their preserva- /
on and disposition. as they exercised to-
ard their own goods. !.
This would hold them to a greater de-
rec of care than merely reasonable care
The fourth request was as follows: IF
lie jury find from the evidence that deceit
as practised upon defendants in the
lipments of bananas they viii find for Z
le defendants" =,
This the Court declined, as no evidence
ad gone to the jury tending to show that :,
~ deceit had been practiced. This was =
ght. "a Court may properly decline to q
we instructions to a jury, when the ques-
on upon which the instructions are de- u
red, is not raised by the evidence" Z
Tendel and Moulton, 26 n. H, A. 1t is G
1t erroneous in a Judge, to decline in Z
ructing the jury in the manner requested "
' either party, when the instructions y
rayed for, are not founded in the evi :
ence, or not applicable to the case Drake 7
). Curtis, l Cush. 1896: "a party has no L
,casion, and no right to frame an by Z
1thesis not founded in the evidence, and .
ask for the instructions of the Court,
pom such a state of things" Rice VS.. =
orter IL, n H. 1877. =
The counsel for defendants, also except Il
the charge of the Court, in saying in !,
that there was no evidence. on L
hat date the different consignments were Z
I'D, nor the names of the persons to c
HON they were sold; and, as one of the !,
illnesses testified that he saw the bananas 7
defendants store, one week after their I
rival, the jury might fairly draw the in
renee, that the defendant may have sold
lem to himself" 1t is not indicated to I
; in what manner this observation of
he Court was not fair comment on the
7idence. If it be true, as testified to by :
ne of defendants witnesses, that the ban
mas were seen by him in defendants store :,
ne week after their arrival, and he sold
lem indiscriminatelv. with his own ban =