The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1889-07-26
SUPREME COURT.
G. Lucas VS.. C. Brewer & Co., Assump-

This is a case in which plaintiff sued |
for an unpaid balance on contract for
erecting building and the defence was
that the building had not been finished
and delivered within the time specified
in the contract.
Instructions to the jury by Mr.. Justice
McCully were as follows:
Gentlemen: l said to you before that
you must entirely exclude from your
minds any observations made between
Mr.. Lucas and Mr.. Carter about regard
ing or disregarding the six months term
In the contract.
The parties settled their agreement
into written contract, by which both
of them are bound, Notwithstanding any
remark which may have been made by
Mr.. Lucas. This contract was made with
Mr.. George Lucas after bids were asked
for and tenders obtained.
They settled that they would take the
price and they made their contract which
binds both parties strictly and entirely.
tits immaterial whether it is a hard case
for one or for the other. There is a claim
by the defendant to have sustained loss
on account of his building not being COM
pleted within contract time. Should he
bear that loss or should Mr.. Lucas? Mr..
Lucas contracted and it is one of the es-
sential elements of the contract that the
building should be finished within six
months from the date of the contract.
In many of this class of contracts a
penalty would have been inserted of SO
much month or a day for the time
within which the work was not done af-
ter the limit of time stated in the con-
tract for the completion of the work. In
this case there is no such clause, but if
there has been damage resulting from
it's non-completion in that time, that can
be proven as it has been offered to be
Zone in this case. The contract was to
do it between the 18th of August
and the 18th of February, six
months; now, it was contract
made for work to be done in Honolulu
and under this contract to build brick
| building and therefore knowing the con-
dition of the weather at that time of the
year, it being the rainy season it is pre-
sumed that an allowance of time was
made for that purpose. The contract
shows the building was to be completed
in six months "unless prevented by ac-
cidents." No accident has been SO
shown here; L should say an accident
would be an earthquake, which would
tumble the walls down, or fire which
would destroy their work or tidal wave
or cyclone, but raining is not an acct
dent. An extraordinary food would
come within the illustrations l have
mentioned. The word accident" is to
be taken in the general sense. In fact
it might be an accident if through no
fault of the builder the building after
erection had fallen down, as for instance
if it were so erected as to lean against
the walls of an adjoining building which
1t had right to lean against and fell
down. Now as to "causes not under his
control" This contract was made for
building to be put up here in Honolulu
by constructor resident in Honolulu
all parties are supposed to know what
can be gotten in Honolulu and what
must be sent for to San Francisco OF
Boston, or wherever else it must be sent
to for; and it would not have done fol
instance, to have sent to England fol-
this work; because it might be got
cheaper there, and throw the loss of time
on the defendants. 1t was made in view
of the existing circumstances.
The contracting parties had a right
before closing this contract to conclude
upon the time as one OF the elements il
certainly made great deal of difference
to Brewer & Co., whether the
building was to be done in six, nine Oh
twelve months and that was one of the
things they contracted for, and any loss
sustained by the contracting parties does
not warrant the contracting builder tt
! throw that loss upon Brewer q Co., I'M
less "beyond his CONTROL" | will leave
to your consideration whether any
causes have been shown here beyond his
control, [ should say extraordinary
causes and not ordinary causes. The
delay in the beginning as to the excava
ton is not an extraordinary cause or be-
yond his control. The fact that one
contractor ran away with the money tC
be used for carrying on the work canno
throw the injury of the delay upon
Brewer q Co., because the contractor
should at his own expense and loss i'm
mediately pursue the work if it were
possible to be done.
1t would not do to say because the
Chinese contractor ran away, let Brewer
& Co. lose month or six months use OF
the building.
1t is not "set off nor anything like
it, but it is deduction from the full
amount of the contract. They have.paid
up the contract less 81 ,129 in ALL They
have shown to you by the evidence OF
Mr.. Jones that they lost rentals to the
extent of $500 per month engaged for
from the time of the completion of the
building, amounting to as much as
! 81 200, and [ refuse the instructions of
Mr.. Ashford plaintiffs counsel that be-
cause they did not execute lease that
this loss should not be so considered.
They have proven to you by evidence
that is not contradicted that they had an
engagement for the rent of that build
ing and they have showed that loss.
They took those rents Immediately after
the building was completed. They have
shown you loss of 5000 paid to their
supervising architect. 1t is not however
| Tor the defendant to recover ANYTHING
although the amount of loss that has
been proven is greater than the amount
| of the unpaid balance, it is that the
plaintiff cannot recover anything from
the defendants. | am asked to instruct
you as to the improperly of ordering
these materials by sailing vessels instead
OF by steam vessels. 1t was not for
contractor to lose time by taking lower
freight by sailing vessels and longer
time, and if he lose thereby it is not the
loss of Brewer & Co. So with regard to
getting the work done here, if it were
possible, the loss of the increased ex-
pense is not to be thrown upon them he
contracted To do If vrithiu civ ,oo,14l :