The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1886-08-10
Supreme Court of the Hawaiian islands,
In Banco. July Term. 1856.

0Happeal from the CHANCELLOR.
This is a suit for the specific performance of an
agreement for the purchase of the property known
as Woods Dairy
The case was was heard by the Chancellor on
March 10th, 18th, oath, and April LIST of the present
year, who rendered the following decision:
Opinion Of the CHANCELLOR
This is bill in equity to compel the specific
performance of a contract for the sale of land.
The substance of the bill is as follows That on
the 31st of December 1885, the plaintiff agreed in
writing with defendant to sell, and defendant
agreed to purchase the Nuuanu Dairy property
situate IN Nuuanu Valley, described in certain
conveyances which set out in the bill that on
the execution and delivery of the agreement de-
PENDANT paid plaintiff the sum of one thousand
dollars as part of the purchase money and entered
INTO possession of the premises. and he and those
claiming under him have ever since and now have
possession of the same: that in accordance with
the agreement plaintiff rendered defendant deed
OF the premises the first of July 1884, but towing
to defect In the plaintiffs title to portion of
the premises release and quit claim was neces-
sary to be obtained from the Hawaiian Govern
ment which was not obtained till the 2Sth of
August 1885, but defendant assented to the delay,
declining to accept the deed until the complain
ants title had thus been perfected: that on the
18th of November 1886, plaintiff rendered defend
ant good and sufficient deed of the premises
complying with the terms of the agreement, and
Is now willing to give defendant such deed upon
his paving the part of the purchase money
amounting to $1,000 and interest due amounting
to S25S4.6O and securing the balance of the pur-
chase money or $4,000, as provided in the agree
ment: that defendant refused to accept the tender
of the deed made on the 18th of November 1885,
and now refuses to accept ii or to pay the purchase
money. or comply with plaintiffs request to exc
cute his agreement The bill prays that defend
ant be compelled TO specifically perform his agree
ment DC.
The answer admits that defendant entered into
the agreement of the 3lst of December 1888, to
purchase the Nuuanu Dairy property including real
estate and buildings but denies that the contract
contains any reference TO the deeds of Vincent
and others which are set out in the bill and saws
that the contract calls for conveyance of six
hundred and fifty acres of land more or less and
contains no other description by which said area
could be limited; that the purchase price named
IN the contract was determined by the acreage
therein set forth; that plaintiff represented to
defendant that the premises contained at least
six hundred and fifty acres and led defendant to
believe 1t contained more; that during the nego-
tatlons the parties figured upon the value per
acre and plaintiff represented the area to be six
hundred and fifty acres that since the date of
the contract the defendant has had survey made
OF the premises and AYERS that they contain only
25S acres; that plaintiff has been IN possession of
the premises since March 18th 1861, and we'll
knew or had the means of knowing the actual
area of the premises; that the deeds of the plain
TIN named IN the conveyance rendered call for
only 3Ol 5000 acres of which portion had been
sold by plaintiff; that defendant was not ac-
qualnted with the area or extent of the premises
and signed the contract relying on the represen-
tatlons of the plaintiff that they contained $50
acres more or less, and that said false representa-
tons were fraudulently or mistakenly made by
plalntln. The answer admits the payment of
SlOOO on account of purchase money and that
defendant has been in possession since January
LIST 1854. The allegation in regard to delay to OBJ
tain quit claim from the Hawaiian Government
and defendants assent to the delay Is admitted.
The tender of good and sufficient deed on No
yember 10Th 1885, or at any time is denied and il
is averred that the deed rendered did not include
more than 25S acres and plaintiff has not offered
to make said acreage of $50 acres. That defend |
ant bought the premises for the purpose of carry
ing on dairy on the same that it was of great |
Importance to defendant to obtain the number of |
acres mentioned in the contract to afford sufficient
pastnrage to keep up respondents business, all of
which was well known to complainant when he |
signed the contract; that defendant relying upon |
the false representations that the premises con-
tanned 600 acres, has expended the sum of S9461.-
90 on buildings and improvements on the premises |
and has built one barn more than was required |
for all the cattle that 25S acres of land could sup
port, and has had to obtain other land to make up
Salo area; that defendant is willing to carry out
his contract upon plaintiffs rendering him deed /
of $50 acres of land or Whereabouts and is now
willing 10 take all of said premises which plain
tin Is able TO convey upon proportionate reduc-
ton being made for deficiency in area below the
amount called for by said contract and to pay the
balance i'll cash. All other allegations are denied
The answer prays that the bill be dismissed with
costs upon defendant paying such sum as may be
found due after allowing proportionate deduc-
ton from the purchase price for the said def
cheney in area.
By THE COURT: The evidence taken is volumi
nous aid only such parts of it are essential will
appear IN the opinion. The case is difficult one
presenting many complications, not only upon the
facts but as regards the relief which would be
equitable to both the parties
1t is clearly established by the evidence that
the plaintiff, though he had owned the premises
since March 1861, had not had it surveyed nor did
ne know Its area, 1t having been described to him
b. his vendor G. w. Vincent as being mile
square and he so represented it to defendant. 1t
is an estate known in this community and COM
monty called John Woods place " or "the Nuu-
anu Dairy" 1t is in sight from the road leading
to the Pail and its boundaries are certain. These
were pointed out by plaintiff to defendant who
visited the premises frequently. 1t is bounded
on one side by the main road, on the opposite side
by the top of the ridge, on the side towards town
by Queen Emma's place on the upper side by the
Luakaha premises. Mr.. Gay who surveyed the
land Tor defendant says that is about 300 feet
snort OF mile long on the road and about the
same length on the ridge and is so situated as to
deceive an observer as to its area, looking much
larger than 1t really is that he could form no accu
rate idea of Its size without measuring and that it
might well appear to be mile square or GAO acres
think it is well established that Mr.. Wood sup
posed it to be mile square and that he made no
fraudulent misrepresentation as to its area to the
The description in the contract of the nronertv
to be sold is as follows: "The Nuuanu Dairy pro
perty including real estate and buildings said | ,
real estate contains an area of $50 acres more or
80 - PAtSe was SAoiVVV, S1,VOO IN cash and
the balance IN deferred payments.
The question is whether defendant is entitled ,
to conveyance of all the land that vendor can /
give (25S acresl with an abatement of the pur-
chase money for so much as the quantity falls ;
short of that mentioned in the contract Numerous
authorities both English and American have been /
cited by counsels on both sides. ;
Chancellor Kent in his Commentaries D. 466 {
and 46T says 1.-THE mention of quantity of acres /
after certain description of the subject by metes
and bounds, by other known specification is .
out a matter of description, and does not amount
% any covenant or afford ground for breach of s
my of the usual covenants, though the quantity
u acres should fall short of the given amount ]