The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1889-03-27
JUDICIAL DECISIONS.
The Hundred and Twenty-one Defend
Decision Reversed and a Dissenting

/ The Hundred and Twenty-0ne Defend
ants Lose Their Case-An Equit,
Decision Reversed and Dissenting
Opinion Filed.
The opinion OF the full Court-except
ing Mr. Justice Dole, who was an at
torney in the matter-has been rendered
in the case, heard at the special bancc
term, of J. K. Nahale and keliikoa, for
and on behalf of themselves and lis
others, VS.. Charles kaiaike. 1t is an
appeal by plaintiffs from the decree on
the decision Of Mr.. Justice McCully, and
| the present opinion is by Mr.. Justice
| Bickerton. The basis of the case was
| that compliments in 1882 formed hui
| or association, not Incorporated, for the
| purpose Of obtaining a lease of certain
lands in Hawaii from Princess Ruth
! Keelikolani. They sent the defendant
! to Honolulu to obtain such a lease, pay
/ ing his expenses by a contribution of
twenty-five cents each. This is denied
by the defendant. Mr.. Justice MCCully
sustained the contentious OF defendant,
dismissing the bill with costs. The full
SOuIL d. dbCNC ann LIS NAAAo OCO4C4O1is
concluding their opinion thus:
cit is very clear, from the evidence
and from the acts of the parties and all
the circumstances surrounding the case,
that these plaintiffs have ne standing as
members of defendants hui. And we
are of opinion that the decree must be
sustained 1t is so ordered. And the
appeal is dismissed with costs" w. G.
Achi and Charles Creighton for plain
tiffs; Cecil Brown for defendant.
The opinion of majority Of the SUI
preme Court, MIR. Justice Dole dissent
ing, has been filed in the case, heard at
the special banco term, OF John 2. and
Samuel Parker VS., A. J. Cartwright,
trustee of Queen Emma's estate; Albert
X. Kunuiakea; E. A, A. q. and F.
Burchardt, and J. Mcguire, comprising
the Kahua Ranch Company. The Opin-
ion is by Chief Justice Judd, upon an
appeal of defendants from a decision by
Mr.. Justice Dole, granting plaintiffs bill
in equity to compel the specific perform
ance Of a covenant in lease. The Court
premise that the controlling question in
the case is whether the covenant under
discussion is one whose performance is
capable of being compelled by the Court.
They say: " 1t is doubtful If the Coven-
ant can mean anything more than pre-
ference to the lessee in proposals for a
new lease. But we are not compelled to
consider this, since we hold that the
covenant is too indefinite to compel the
covenanter to specifically perform it.
Having reached this conclusion, it does
not become necessary to consider the
other positions taken by the defense.
The decree on the bill must be reversed
and the appeal dismissed, with costs"
The " covenant" alleged to exist in the
bill was in the words " subject TO a new
agreement appearing in the lease in
question.
Mr. Justice Dole dissents from the
majority opinion briefly as follows:
" Upon the question of construction,
which is the only question raised by the
foregoing opinion OF the majority Of the
Court, L still adhere to my former Opin
ion. The word agreement is not only
often used by unprofessional persons for
the document containing an agreement,
but such use is also authorized by the
dictionaries. The parties, therefore,
under the words OF the covenant, may
easily have agreed to a renewal of the
existing lease, and have made it sub
ject to a new agreement /. e., subject to
a new lease, instrument or document
carrying out the renewal or extension
agreed on"
A S. Hartwell and P Neumann for
plaintiffs; G. Brown for Cartwright and
kunuiakea; w. 0. Smith for the Kahua
Ranch Company.