The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1888-06-19


On the 14th February the defendant
filed his motion to set aside the YER
dict and for new trial on the grounds
that such verdict is contrary to law
and the instructions of the Court, and
against the weight of evidence, and
that the damages are excessive, which
motion was argued before me on the
18th February.
Itappears to me that the jury must
have misunderstood my Instructions
or Inexperienced the effect of the
lease and the evidence as to the
amount of land and other property
demised.
They appear by thvi- verdict to
have taken into consideration the 100
acres of rice land only, and that the
rent, S1,25O, was payable in respect
of that land only, s. $4,000 per acre
for $50 making the total rent Of 81 go.
They have also calculated the dam
ages for the whole term instead of de-
Quoting one year according to my in
structions.
The effect of the verdict is that the
defendant would only receive rent for
6l-93 acres OF rice land, and that the
plaintiff would, according to the cal
culation of the jury, hold the balance
of the land above LOO acres and the
house free of rent for the residue OF
the term.
Icannot think the jury could have
understood this to be the effect OF
their verdict.
| am of the opinion that this verdict
must be set aside so far as respects
the damages.
There was testimony to support the
finding of the jury as to the amount
of shortage, and | think this finding
should stand.
A new trial should be granted upon
the amount of damages only, and l
order so.
By the Court.
1t appears by the foregoing that the
demised premises contained over !, 700
acres, at an annual rental of 81 $50.
That of this amount $50 acres was
covenanted to be suitable for rice Gull
ture. That the jury found that there
was shortage of the land fit for rice
of IS 100 acres, and that the defend
ant had overpaid for rent each year
IS 335-l00 per acre of such shortage.
That is to say, the jury applied the
whole rent, 81, $50 per year, to the $50
acres covenanted to be rice land, al
lowing no rent for the 1850 acres,
with a dwelling house, etc. There
was testimony that some of this land
was worth 81 per year rent as pastur-
age,
1t appears, moreover, that they
made this computation to extend over
a year, which they were directed by
the Court to deduct.
These computations are undoubted-
" in contravention of the instruction
of the Court'in these words: "That if
they found shortage the true meas
ure of damage would be to consider
the amount of rent payable under the
lease and say how much less it would
be fair for the plaintiff to pay for the
shortage, how much the annual rent
should be on account of shortage, and
to calculate that amount, not from
the date of the lease, but for one year
less, being the time the survey was
made according to the level agreed
upon"
These instructions were not ex-
cepted to.
Section S22 of the Civil Code reads
"All questions of law arising in any
civil cause shall be decided by the
Court or Judge before whom the mat
ter is pending; and the instructions
of such Court or Judge in relation to
the law shall be binding upon the
jury, if any be impanened in the
cause"
We do not see how there is now
room for argument upon the propriety
of this instruction. 1t must be taken
to be the law of this case. The jury
was bound to regard it. They have
evidently disregarded (or misunder-
stood) it. Here was their rule for the
determination of the damages. They
have taken another.
The counsel for the plaintiff makes
an ingenious and elaborate argument
to show that they might have arrived
at the same result by evidence of
profits lost, which were reasonably
certain to have been realized, if the
shortage had not existed. But the
evidence in this case shows mat the
plaintiff had not placed any part of
the land in a position to be rented for
rice land. If he has lost the rental of
the IS 100 acres not suitable for rice
land, he has in fact lost the rental of
the 81 93-100 acres which he is IN pos
session of. for he has not rented them,
not having put down wells. The con-
tract of the Chinese tenants of the
two hundred acres is to take the adj
ditional land from the date of suf-
ticient water flowing over them.
1t is true, as charged by the learned
Justice, that there was breach of
| the covenant from the date of the exc
cution of the lease. But at that point
of time the plaintiff had suffered no
/ other than nominal damage, for he
had lost nothing. Equally true is it
that he has lost nothing through the
defendant until he has failed to OBJ
tain a rental through lack of land
which is fit for rice and is watered.
Is the plaintiff then bound to bore
wells upon land not fit and suitable
for rice culture? No. Would he be
bound ii no part of the $50 acres GOV.
enanted were found, to bore wells and
suffer the loss in order to recover
damages? We answer again-No.
In our view the amount of plant
ifs damage must be based upon evil
dence of the reduced value of the
whole rental of the whole land by
reason OF the shortage SO 0T-100 acres
of land of this certain description.
Such proof would be perhaps difficult
to make. 1t appears not to have been
made at the trial.
| We hove nada thase obsar,ro tione