The Hawaiian gazette., 1889-05-14

L
that from, may in the vulgar use, and
even in the strictest prOpriety of Ian
guage, mean either inclusive or eX-
clusiue; that the parties necessarily
understood and used it i'll that sense
which made their deed etfectual that
the courts of justice are to construe
the words of parties so as to effectuate
their deeds, and not to destroy them !;
more especially where the words
themselves abstractedly may admit of
either meaning" The parties could
not have intended sham agreement,
"a document which was covenant
only in form but void in reality. The
alleged covenant of renewal was part
of the inducement to Allen and Stack
pole to take the lease; it was under
stood by Allen to be valuable con-
siderltion. Cartwright must have
intended that he should so understand
it. Therefore if the documents is capa-
BILE of two constructions, that one
must be adopted in which the prom
Using party intended the other to I'M
derstand it, if the other did so under
stand ii, or as Chancellor Kent eX-
pressed the rule: 1.-The true princi-
pie of sound ethics is, to give the con-
tract the sense in which the person
making the promise believed the
other party to have accepted it, if he
in fact did so understand and accept
it," q Kent So, Chitty's Contracts,
ii, and Paley's Moral Philosophy
The old rule, that in the construction
of instruments in cases of ambiguity,
the words must be taken most strong
ly against the party that used them
and most favorably to the other party,
may also be applicable to this case,
and if so, it supports the conclusion
which I have adopted, that the docu-
ment in question is a covenant for the
renewal of the original lease at the
option of the leSSees.
The second point raised by the de-
Tense, is that the plaintiffs, by max
ing proposals for a new and dissimilar
lease without claiming any preference
or privilege under the renewal cove
nant, waived whatever rights they
may have had under it.
If Aliens offer for a new lease for
fifteen years at $500 year, had been
accepted. it would have been a waiver
of the covenant of renewal unless it
could have been avoided on the ground
of mistake, but it was refused. AL
though it is doubtful if an agreement
within the statute of frauds, as this
is, may be proved to have been orally
waived in an action at law, yet in
equity such proof may be admitted,
but such parOl waiver must "be eX-
n,,I ~ email, n h1 n 10
leave no reasonable doubt as to the
of the parties" (Rodmdn
rs. GUey, l \. J. Eq., 800, 32S.) In
the case before the Court there is no
of any intention on the part
of the plaintiffs TO waive their rights
except as such proposition for fifteen
year lease, might be so regarded; but
both Allen and S. Parker appear to
have forgotten the covenant of re-
newal at the time this proposition
was made; and in any case it would
not have the effect of waiver unless
it had been accepted and entered into.
When Mr.. S. Parker returned from
San Francisco, in October, 1887, he
first ascertained that the land had
been leased to the Kahua Ranch
Company, and shortly afterwards, i'll
the month of December, he informed
of the covenant for renewal.
At that time there were negotiations
going on through Mr. Allen for an eX-
change of these premises with another
land which Parker had prospect of
In January, 1888, Parker
had an interview with F. Burchardt,
at Kahua, upon the matter of the pro-
posed exchange, at which time he
told F. Burchardt that he didn't
know but he had clause of re-
newal and If they couldn't come to
terms he might apply for new lease.
presumably under such covenant of
renewal. About February 10, lSSS, S.
Parker had an interview with the
Burchardts upon the same subject at
beach, and said during the
if negotiations came to
he might try to get re-
newal of the lease. These expressions
Of Mr.. Parker are inconsistent with
the theory of waiver, and they were
made with reasonable prOmptitude
after he had an opportunity to exam
inc his lease and inform himself
about the covenant for renewal.
The same circumstances are also
to the defense of estoppel;
there was no concealment of the facts
by the plaintiffs after the return of S.
Parker from san Francisco; neither
was there a standing byn and al
lowing the Kahua Ranch Company
to spend money, or arrange their bus
mess upon the strength of their deed
from Cartwright. In January and
February, 1888, the negotiations for
the exchange were going ON and there
is no pretense that at that time the
kahua Ranch Company had seriously
their business arrange
ments to the expected requirement
Of the premises in question, nearly a
year afterward; yet that was the
time when S. Parker intimated to
them that he thought he had a cove
nant of renewal, and that if they
come TO terms he might take
of it. This was not keeping
silence nor standing by" and what
ever expenditure or arrangements the
afterwards made, they made
upon their own responsibility and
peril. Moreover it appears that in
the month of December, 1887, +. Bur-
ahardt was informed by man named
who he was aware had
been a clerk of Stackpole, that there
was renewal clause, and he SAYS he
placed no reliance upon what he said
and when he seemed to be anxious
about it, II had nothing more to say
10 him." 1t is also matter of evil |
1ence that the Kahua Ranch Com
pany were perfectly well aware that |