The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1889-07-20
SPECIAL TERM, JUNE, 1889.

The following interesting decision, in
the case of j. E. Brown vs.. +. ). HIS
was delivered Gin Chambers" on the
18th July inst. by His Honor Justice
Preston, jury having been waived:
DECISION.
This case was heard by me without |
Jury on the twentieth day of June last.
The plaintiffs declaration states:
"That he claims of the defendant f. j.
Hills the sum of two thousand dollars tor
damages resulting to plaintiff in that the
defendant on or about the 10th day OF
December. 1887, in consideration of three
thousand dollars to him by plaintiff paid,
sold to this plaintiff that certain business
known as the Tahiti Lemonade Works
with the goodwill thereof, and then and
there agreed with the plaintiff to deliver
to him the stock in trade of said busl-
ness set forth in the schedule annexed
hereto and made part thereof, marked
Exhibit "a and further agreed that the
chattels in said schedule set forth were
OF good and serviceable quality.
"That after the pretended delivery OF
said chattels by defendant the plaintiff
ascertained that instead of 800 dozen OF
bottles agreed to be delivered only 800
dozen were delivered, and that the value
of said 500 dozen which defendant failed
to deliver was 1915.
"That plaintiff demanded of defendant
the said sum OF 1915, but to pay the same
or any part thereof, the SAID defendant
refused.
"And for further and separate cause
of action. plaintiff alleges that the de-
PENDANT sold to plaintiff on the date
aforesaid, the 10th day of December,
1887, among other things and as part of
the stock in trade of the said Tahiti
Lemonade Works, certain essences
valued in said sale at the sum of four
hundred and fifty dollars; and then and
there represented to the plaintiff that
said essences were of good and service
able quality upon which representations
this plaintiff bought said essences and
paid for the same the said sum of four
hundred and fifty dollars. That said
essences were not of good and serviceable
quality except certain part thereof, of
the value of $9S Is, and that the rest
thereof for which plaintiff paid to de-
PENDANT the sum of 1854 % was utterly
spoiled and useless and valueless.
THAT said representations of defend
ant as to the quality of said last men
toned part of said essences were false,
and that at the time of the said sale the
defendant we'll knew that said essences
were of no value and were spoiled and
useless
"That plaintiff demanded of defendant
the payment of said sum of 1854 %, but
to pay the same or any part thereof the
defendant refused and still refuses.
"And for further and separate cause
of action plaintiff AYERS.
''That relying upon the false and
fraudulent representations made by de-
fendant to the effect that the essences
sold by defendant to plaintiff were good
and serviceable, the plaintiff used the
same in the business of the said Tahiti
Lemonade Works for the manufacture of
aerated waters.
"That the said essences were, as here
inbefore stated, bad, deleterious and I'M
serviceable, and that by reason of the
bad, deleterious and unserviceable con-
| dition and quality of said essences, a
great number of the bottles of the water
manufactured by plaintiff in the said
works, were spoiled and destroyed, and
in consequence thereof the reputation of
said works was deteriorated and the sales
of it's manufactures seriously diminished
to the damage of plaintiff in the sum of
thirteen hundred dollars or thereabout.' -
At the trial the plaintiff put in list
of goods which he said was given him by
the defendant as basis. This list con-
tains the items of $500 dozen bottles,
5000, and "$400 to $500 essences, $3.50. -
The total of all the items amounting to
IS, 565.
The plaintiff produced deed whereby
F. j. Hills (the defendant) and Nuu
Vahine, described as carrying on bust
ness at Honolulu as Aerated Water
Tahiti Lemonade Works." in consider
alton of $4,000, sold to the plaintiff GER
tain goods, being the same as those men
toned in the said list, and the good will
of the business.
From the evidence it appeared that the
plaintiff obtained possession of only 800
dozen bottles, and that a large proportion
of the essences, etc., was unfit for use
and that some of the waters manufac-
tured therefrom was spoilt. The plain
tiff estimated the value of the useless
essences, etc., at 1854 %, and claimed
that his business was injured to the ex-
! tent of 5000 a month in consequence of
the use of such essences. This last allie
cation find to be entirely disproved by
the plaintiffs letters to the defendant.
Counsel for the defendant contended
that the plaintiff could not recover, as
the evidence showed sale by the plain
tiff and Nuu Vahine, and that there was
no evidence of any misrepresentation
| by the defendant alone.
| am of opinion that the plaintiff has
failed to prove the allegations in his
declaration, There is no evidence TO
support the allegations of sale of the
essences, etc., for $3.50 The sale was of
the goodwill and stock for So 900, and it
cannot be maintained that any particular
item was sold at a specific price. The
sale was by the defendant and Nuu
Vahine and not a sale by the defendant
alone.
[ am of opinion that the defendant is
entitled to a decision is his favor.
therefore direct Judgment to be en-
! tered for him with costs.
EDWARD PRESTON.
Paul Neumann for plaintiff; O. Brown
for defendant
Honolulu, july II, 1889.