The Hawaiian gazette., 1889-01-29

Hone Wal Co.
JUDD c. J., M'CCLLY J., PRESTON J., BTCKERroH
!, DoLH J.
Opinion or tie Court per JUDD CT.
This is So-called croSS-bill in thu
suit of c. Monting ct al. as. Leons
kau Ct al, praying for the reforms
ton of certain articles of copartner
! ship made between the parties on the
/ 5th September. 1854. The copartner.
ship capital was $1,000, divided into
ten shares" 5000 each. The saiG
firm of zee Hop x Co, plaintiffs
/ held tive shares. The cepartnerShiI
! articles read that the parties to the
/ agreement "will give their attend
ance and personal labor or furnish
1 substitutes, who shall work in their
places and shall be paid by them out
I of their own private funds, and it is
| further agreed that each partner hold.
| ing more than one share shall furnish
n workman for each share over and
above the initial share, and in the
event of said partners failure to fur
nish 4 workman or wOrkmen for said
share or shares, he Is to forfeit and
pay 10 the company sixteen dollars
per month for each workman not so
furnished 1t was further agreed
that 1.-The members of the said firm
Of zee Hop X Co. and the said c..
Monting shall not give their personal
labor, but furnish substitutes who
shall work in their places, and shall
be paid by them out of their private
funds"
1t is claimed in sthe cross-bill that
an agreement in the Chinese character
was first made between the parties,
in which ii was stipulated that the
firm of zee Hop X Co. should only
supply one substitute TO work in the
rice plantation, although holding tiCo
shares in the business, and that the
articles of copartnerShip in the Eng
fish language thereafter made only
require the plaintiff TO furnish one
substitute, but that the complainauts
in the former bill, defendants herein)
claim that plaintiffs are required by
the articles of copartnerShip TO fur
nish or pay for two laborers in respect
of their two shares.
The Court is prayed that, if on full
consideration OF the meaning of said
English articles, it shall appear that
they fail 10 set forth and contain the
true agreement between the parties,
the defendants be required to execute
an agreement which shall fully eX-
press the correct agreement made in
the premises, etc.
By THE COURT-It does not seem
10 us that the evidence adduced brings
Il
aS to entitle the plaintiffs to relief.
We find the law To be rs follows:
4 deed should never be changed
by parol, or 4 slight prepOnderanee of
evidence. The Court should be salts
fed beyond 4 reasonable Doubt
Case Is Peters, 20 Mich. sos.
at Is well settled that to raise an
equity TO correct 4 deed, the mistake
must be either admitted or directly
proved" Trip Is. Hasceig, Id. 263.
d" We recognize = mistake in fact as
a ground for equitable jurisdiction :.
but relief Will only be granted upon
clear and satisfactory proof OF the
mistake in fact RuTHcy rs. NcCOH- |
mel, Il Ill. 2l5.
Courts of equity will relieve |
against mistake, and will correct and |
reform deeds and instruments of the /
relief. But when relief is sought from /
deeds or other writings, the mistake
must be clearly proved BWgfn IS.
Gi5erSOU, % y. J. Eq.
This Court has equity jurisdiction
in cases Of accident and mistake,
where the p&rties have not q plain
aud adequate remedy at law. Such
has often been exercised
n this State, in cases where the ext
;ence OF the mistake was plenary, and
eft no doubt in the mind Of its eXis-
ence." Tucker Us. Maiden, Il Ne.
rs.
1.-The mistake must be admitted or
distinctly proved" Robbins vs.. Bar
.gyi. IS Mich. lbs.
but where, in equity, mistake Of
he parties il expressly charged and
,ut in issue, equity will permit it TO
,e inquired into, and upon strong and !
proof, 10 be corrected
The evidence must make II clear"
7a1cdyvs. Marcy, IS Gray, 81. Shaw
=. J.
TO entitle = party to the decree Of
court of equity, reforming written
instrument. he must show first a
lain mistake, clearly made out by
satisfactory proofs. Whenever the
whence Is loose, equivocal or contra
ictOFy, OF i in Its texture open 10
Oubt or opposing Prescriptions, the {
slief viii not be granted NeUiHs
:. Dunlap. IS y. Y. 6Sl.
The evidence TO show mistake in ,
written instrument must be clear
nd strong, 80 as TO establish the mis-
Ike to the entire satisfaction Of the
curt" GiIiiSpis V. Noon, , Johns.
b. IS, by Oh. Kent.
But We are of opinion that the ar
cles of copartnership may be con I
rued 10 mean, where they say leach :
artner holding more than one share
ialI furnish q workman for each !
lare over and above the initial I
lare.r that each partner treating I
,e firm OF zee Hop & Co. a. one I
srtnerl shall furnish workman for
.ch share over and above the initial /
.Jerest-that i 10 say, the interest :
hich the partners had al the fOuna-
on Of the partnership, which in the q
.se Of zee Hop & Co. was two Of the :
N shares Of $500 each. b
The bill does not pray to have this y
M Of the agreement reformed, both n
rites apparently resting upon the n
ca that it means a We have found :
70 mean:
The clause, further on, that the q
embers OF the said firm Of Yee Hop
~ and The said G. M0UTiUoy shall =