The Hawaiian gazette., 1889-05-14


the said company, being ignorant of
tn Golfer made by the said Allen, made
their bid for the said lease as afore-
said, which was accepted and lease
in conformity Herewith was there
upon executed, and that the said
Allen and the plaintiffs, during the
tendency of the negotiations for the
said lease and long after the execution
thereof did not claim nor intimate
that they were entitled to q renewal
of the plaintiffs said lease, nor that
covenant of renewal was contained
therein; that on or about November
%, 1857, the said Allen, in converse
ton with the said E. A. Burcnardt,
expressed much diSapproval of the
action of Cartwright III the matter,
but did not claim nor intimate that
the plaintiffs were entitled to new
lease under the cOvenat of renewal,
and said that they would never have
paid such rent as had been offered by
the company, and expressed surprise
that the company had been willing to
offer so much; and they claim that
they have acted in good faith in the
matter; that the action of the plain
tiffS in rendering bid for new lease
and their conduct in the premises was
inconsistent with the supposition of
the existence of covenant for re-
newal; that the alleged covenant is
void for uncertainty; that they are
not chargeable with notice thereof,
and that since the execution of the
said lease TO them they have, relying
upon the same, arranged their bust
ness with the expectation of occupying
the premises i'll question on January
lSt, 1889, and are greatly prejudiced
by reason thereof.
The answer of Albert kunuiakea,
defendant, was merely formal.
The covenant, which is the basis of
this controversy, is as follows:
ait is understood and agreed be-
tween the parties TO the above lease
that Allen and Stackpole shall have
the privilege of renewal subject, how
ever, to a new agreement.
Sig ALEX. J. CARTWRIGHT,
ALLEN d STACKPOLE.n
This is written in Cartwright's
handwriting Immediately below the
signatures of the original lease from
Cartwright to Allen & StackpOle,
which lease was delivered to Allen 4
Stackpole and went into the posses
sion Of the plaintiffs upon the assign
ment OF the lease TO them. The same
lease contains the following marginal
endorsements:
Permission is hereby given to W.
F. Allen and c. Z. Stackpole to assign
this lease TO Samuel Parker and Jno.
7. Parker, subject TO the covenants
herein.
Sig kALELEONALANI,
by her atty. in fact,
ALEX. J. CARTWRIGHT.
Witness,
ALEX. J. CARTWRIGHT, Jr.n
And:
The within lease is hereby as
signed to John P. and Samuel Parker,
July lst, 1888.
(Sig.) ALLEN & STACKPoLE."
Considerable testimony was taken
on both sides, and the defendants con-
tended that under the pleadings and
evidence;
l. The alleged covenant for renewal
is void for uncertainty.
,. The plaintiffs, by making pro-
posals for new lease obviously out
side of the said alleged covenant for
renewal, without at the time claim
ing any benefit or preference under
the same, waived whatever rights
they may have had under such cove
nant.
3. The plaintiffs, by their silence in
regard to the said alleged covenant of
renewal, at the time of the said lease
TO the kahua Ranch Company and
are estopped from claim
ing any benefit therefrom.
1. The alleged covenant for renewal, |
not being recorded, and the Kahua
Company being ignorant of its exist
ence, they should not be affected
by it.
Upon the first point, that the al !
legged covenant for renewal is void for |
uncertainty, it is argued by counsel |
for defendants that the words "sub- !
ject however, to a new agreement
at the end of the covenant, introduce |
ambiguity into the document and pre- !
vent it from being a simple and def |
mite covenant for renewal of the lease. |
but make ii an agreement for a new
lease upon terms TO be agreed upon |
in the future, which, as counsel say,
could not be construed nor enforced. |
In considering this question, very
little assistance is afforded by the evil |
dence. Mr.. Cartwright cannot re-
member anything about the covenant !
or its execution, and Mr.. Allen can |
not remember when il was made, but |
testifies that it was done at his re- !
quest and that he should hardly have
taken the lease without it, If we
leave out the words Subject how |
ever, to a new agreement" there is no |
question that ii would be a covenant |
for a new lease upon the terms of the |
old one. (TTdcy rs. Albany Each. !
Co., : \. y. AZ Do those words |
change the meaning? If they make it |
mean that the tenants are entitled to |
d new lease upon terms to be agreed |
upon, the contention of defendants |
counsel, that it is void for uncertainty,
is certainly sound. The document is |
capable of this meaning; is it capable |
of any other? / do not see how it can |
be construed into an agreement to |
give the tenants q right TO make a |
bid for d new lease il contains no |
words which import such a meaning. |
There is only one other possible con- |
StruCtion open to consideration, and |
that is that the words mean an agree |
ment for renewal of the existing lease, |
that is to say, they form an agreement |
for new lease upon the expiration of |
the old, upon the same terms with the |
old. | think the words are capable of |
this INTERPRETATION the words nsub- /