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


After verdict for the plaintiff, a
new trial was ordered, upon which
the plaintiff filed these exceptions:
"The case is set out in the decision
of Mr.. Justice Preston, which may be
read as a. part of this bill of excep-
tions.
"The evidence, so far as it affects
the points in issue, is taken from the
Judges notes and is filed herewith,
also notes of the Judges charge"
The decision referred to is given
here:
Decision of Mr.. Justice Preston:
This is an action for breach Of COW
enant contained IL a lease of certain
lands situate at Mokuleia, Waialua,
island of Oahu, demised by the de-
PENDANT to the plaintiff.
The complaint is as follows:
"The undersigned claims of Joseph
P. Mendonca, defendant, residing at
Waialua, in the island of Oahu, the
sum of twenty thousand dollars for
damages resulting to him in that the
defendant, on the 9th day of May,
a. D. 1884, by indenture Of that date
between himself and the plaintiff, one
part of which said indenture, signed,
sealed and acknowledged by the
parties the plaintiff now brings here
into Court, did demise and lease unto
the plaintiff, his executors, admins
traitors and assigns, all the land held,
owned and controlled by the defend
ant at Mokuleia, Waialua, aforesaid,
excepting as in said indenture, is eX-
cepted certain two hundred acres to
be thereafter surveyed and set apart.
To have and to hold said demised
land, excepting as aforesaid, unto the
plaintiff, his executors, administrators
and assigns for and during the full
end and term of fifty years from the
first day of May, A. D. 1884, yielding
and paying therefor the sum of twelve
hundred and fifty dollars for each and
every year during the continuance of
said lease, and in and by said linden
ture the defendant covenanted with
the plaintiff, his executors, admins
traitors and assigns, that there were
in the demised premises fully one
hundred and fifty acres of land tit and
at a proper level to be cultivated in
rice, by aid of artesian wells, over and
above said two hundred acres.
"And although the plaintiff hath
performed all conditions precedent on
his part, and all things have happened
and occurred, and all periods of time
have elapsed to entitle the plaintiff to
a performance of the defendants COW
enant, and TO enable the plaintiff to
maintain this action, yet the defend
ant has not shown, furnished or
placed at the plaintiffs disposal, and
there are not in the demised premises
fully one hundred and fifty acres, but
only g. 93-l00 acres of land fit and at
q proper level to be cultivated in rice
over and above said two hundred
acres, and SO the defendant, although
often required, hath not kept, but
hath broken his said covenant in this
that the plaintiff could not hold and
use all of such one hundred and fifty,
but only 81 93-l00 acres of land fit and
at proper level to be cultivated in
rice, according to the form and effect
of said indenture, to the plaintiff $
damage as aforesaid, which the plant
if alleges was and is in contravention
of his private rights under the laws"
At the trial before me at the special
term in February last, the jury found
there was deficiency Of IS 7-l00 acres
of land of the $50 acres warranted by
the defendant by his covenant. 1t
was proved that under an agreement
entered into between the parties on
the 10th April, 1885, whereby the
parties agreed upon the level to be
taken for the survey of metes and
bounds of the 200 acres of land re-
served by the lease and of the $50
acres of rice land guaranteed to the
plaintiff, a survey was made of such
lands.
Evidence on behalf of the plaintiff
was given to show that the value of
the land as rice land was ten dollars
per acre, but no evidence was given
on his behalf that the land could be
leased for such sum without water.
Mr.. Rowell, who made a survey of
the lands, stated that he based his
valuation of ten dollars an acre by
taking the value at twenty-five dol
lars. The plaintiff stated that some
of the land, claimed by the defendant
to be rice land and included in the de-
ficiency, was worth two dollars an
acre per annum for pasturage pur-
poses.
The plaintiff claimed that the
measure of damage was the annual
rental value of the deficiency from
the date of the lease to the 18th De-
cember, 1887, the date of the writ,
with interest at the rate of nine pei
cent per annum, computed annually,
and claimed that such value was ten
dollars per acre.
| instructed the jury to find the
amount of shortage (if any so as to
avoid further litigation upon that
point, and told them that ''wheneveI
q party to a contract has failed to per-
form what he has contracted to do
the other party is entitled to com.
pensation in damages; that as far as
money can do it he is to be placed in
the same situation with respect tC
damages as if the contract had been
performed"
1 also told the jury that the measure
of damages claimed by the plaintiff
was not the correct way of ascertain.
ing such damage, that ten dollar.
would not be the proper measure
that if they found shortage the true
measure of damage would be to con
slider 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
less the annual rent should be OF
account of shortage, and to calculate
that amount, not from the date of tn,
lease, but for one year less, being tn,
time fine survey was made accordinI