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

/ agreement such as occurs here) t
enter into an agreement cannot bt
ordered to be specifically performed
on the ground that before the Cour
can properly make a decree of tina
character it must be satisfied tina
the parties have contracted to dc
something of a definite character
something ascertained, or which
can be readily ascertained anC
something, too, which can be done
by the simple methods within the
control of the Court, and which the
Court can supervise and, if need be
aid" The Court held that no con-
Guided agreement had been entered
into.
In Rooster Is. Miller, L. r. Sd
appeal cases 1888, Lord Chancellor
Cairns quotes approvingly from
Chinook Us. Warehouses Of Ely,
de G. j. 4 s., 63S, that "if there
had been Il final agreement, and
the terms of it are evidenced in a
manner to satisfy the Statute of
Frauds, the agreement shall be
binding, although the parties may
have declared that the writing is to
serve only as instructions for a
formal agreement"
In the case before us, how can it
be said that the parties had arrived
at final agreement when the words
of the covenant are that it is "sub-
ject to a new agreement ?"
We next refer to Vim Us. Bull,
L. R. 7, Oh. d. 80. Here by a
written agreement the defendant
agreed with the plaintiff to take a
lease of a house at certain rent,
"subject to the preparation and
approval of a formal contract" No
other contract was ever entered
into between the parties.
Held, that there was no final
agreement of which specific per-
Torrance could be enforced against
the defendant.
Jessel, NJ. r. (1S70, says: alt
comes, therefore, to this, that where
you have Il proposal or agreement
made in writing expressed to be
subject to a formal contract being
prepared, it means what it says: it
is subject to and is. dependant upon
a formal contract being prepared.
When it is not expressly stated to
be subject to a formal contract it
becomes a question of construction,
whether the parties intended that
the terms agreed on should merely
be put into form, or whether they
should be subject to RelC agree
ment, the terms of which are not
expressed in detail.
The result is, that 1 must hold
that there is no binding contract in
this case, and there must therefore
be judgment fer defendant"
1t is very significant as bearing
upon the construction of the lease
before us that the learned Master
of the Rolls uses the very language
of the covenant under discussion
- subject to new agreement"-
and holds that if the terms " should
be subject to a new agreement, the
terms of which are not expressed
in detail" there is no binding con-
tract.
Having found that the parties in
making this covenant left the term
of the renewal, the rent to be paid,
etc, to be fixed by Il new agree
ment to be arrived at between the
parties at the end of the original
term, there is no definite contract
which the Court can enforce.
1t is said that as a covenant for a
" renewal means a renewal of the
old lease with all its terms, rents |
and covenants except that of re-
neWal, this would be nullitied by |
the latter part of the covenant in |
which provides that the |
term, rents and covenants shall be /
such as may be agreed upon by the
parties.
This may be so. The covenant |
may have been drawn without the
signers being aware of the effect of |
the language they used. However,
we must construe the covenant by
itself, without reference to the I'M
Ierstanding of the parties other
than as we gather it from the in
strument itself. 1t is doubtful if
the covenant can mean anything
more than preference to the lessee
in proposals for a new lease. But
we are net compelled to consider
his, since we hold that the COW
sHant is too indefinite to compel
he covenantor to specifically per-
.Orm it. Having reached this con-
.lusion, it does not become neces-
AIRY TO consider the other positions
aiken by the defence, to wit: the
,stoppel and waiver. The decree
)elow must be reversed, and the
ill dismissed, with costs.
y. :. HartWeIl and p. Neumann,
or plaintiffs; c. Brown, for A. J.
cartwright and y. X. hunuiakea /;
y. 0. Smith, for the Kahua Ranch
'Ompany.
Honolulu, March %, 1889.
Dole j. Dissentin0.
Upon the question of construction,
-hich is tho only nunstinn raisnd |