The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1889-04-16


E-1EEE-oS = AND DOLL :.
81 -as Court per Judd, c. j.,
DJic J. dissenting.
-15> j. q bill in equity TO compel
- specific performance Of a COW
--z-- in q lease. For statement OF
--a r-LL and answers we refer 10 the
-z-- 10 NJ. Justice Dole appealed
--e controlling question IN this
-- j. whether the covenant under
-1=-=sn i one whose performance
z- capable OF being compelled ny
abe court Ii reads -It i under
z-a-l and agreed upon between
-H parties 10 the above lease that
Amen a Slackp5le shall have the
privilege o. renewal, subject, how
ever 10 e new agreement"
ga settled rule that courts OF
a--z-- w5I uct specifically enforce
contract tha- Is either not certain
Us -=rm1. nor capable Of being
made certain,
5-alCw on Equity, 2. 1875,
4 --e-y'5 Eg. Jur.. Sec. 769,
lord H-C-u57s rs. Lard OXFORD, 3
- 400
where Lord Chancellor LoughbOr-
rz-a said Il lay it down as a
general proposition, to which l
---w -l- Limitation, that all agree
mems - order TO be executed in
--=- rau-. must be certain and de-
--aL
E CD specific Performance, Sec.
-s-- 1T VIII be obvious that
~ mount gf certainty must be re-
CURED 81 The specific performance
ca contract in equity greater than
-- demanded in an action for
-l- ii law. The reason given
e. --z-.at law the conclusion that q
defendant has not performed his
contract NAY be arrived at without
---- exact consideration OF the terms
a. Tie contract; but in equity it
must appear not only that the con-
--ze- mas uo- been performed, but
SHAT j. The contract which is to be
REFORMED. The certainty re-
CURED must be q reasonable one,
having regard TO the subject matter
1f ne contract and the circum-
Stances under which and with re-
-z-E ~ which Il was entered into"
Il
1T = better, for avoiding fraud,
o. suffer a party 10 escape out of q
Contract which he may have in
-e-6ed 70 make than 10 enforce it
zr1- 3 conjecture that such was the
intent 81 the parties" Lggladsn IS.
lE-u- g Yes. 325. Taylor's Land
--l and Teusut, Sec. 333.
The contract which Is sought
20 l- Specifically executed ought
-l- --rvr1 be proved, but the terms
should be 80 precise that
-zz-Egr party could reasonably mis-
and -=z1d them IF the contract
vague and uncertain, q court Of
equity w5L not exercise its extra
ordinary Jurisdiction TO enforce it,
VII leave the party 10 his legal
L8IsJg rs Thompson, ,
Eez--- $50
The contract must be certain in
Preston rs. Preston, 95
@ =-he meaning Of the COW
I'D question OF the first
~ I'D u the words ..subiect, \
~" etc. there Is no
- THAR i j. q simple covenant
renewal. and that Il would be
-s5l tv . renewal for one term
l-e same rent.
-Eis privilege UI renewal .
=l with the condition sub f.
however. 10 q new agree I
-Ee Eg-5- subject to" mean +
10 l- conditioned upon. I
iu this connection. +.
- -e ZeE1iuE of notWith-
z and the whole phrase
-ll- The privilege Of renewal /
ned Notwithstanding the
r- renew -bgIelse, upon q 4
-a Iel-' That the words
lElt" III this conneC- +
10 -l- mean a new .Iease'
@ Tie SINE terms Is evidenced
-L- Use % the word agree
aud Dot tIeasa." %. If a
renewal nls what was Gov
-- there would be no
o. add that 1T should be
b the execution Of q new
The lessee would in such
entitled 10 the execution +
else without the addition
-ls The plain and
-ic5-I 81 the word .'agree- /
--le consent OF two or
" persons c1ucurring respecting /
= =1l--iJl OF some property,
benefit, with 4 view Of
--E al obligation" Bou-
L-w Dict. And the words
-=E agreement p, must mean a
eE consent az the contracting par
- - 40 rHe terms Of the lease.
Is uzs conceded in argument by !
s counsel that il the words
-z-e a condition precedent for the ]
---la-5al % new agreement, then
-.=e Performance cannot be en-