The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1891-04-27


OPINION OF THE COURT BY M'cULLY, J..
The point of law upon which an
exception was taken Is stated at
large in the decision of the trial
Justice which is appended hereto.
Upon examination we are of opin-
ion that the defendants exception
was not we'll taken, for.the reasons
and on the authority cited in the de-
cision, which we adopt as the opin-
ion of the Court, and hereby over
rule the exception.
J. A. Magoon for plaintiff; A.
Rosa for defendant.
Honolulu. April IA, 1891.
SUPREME Court, OF THE JANUARY
TERM, 1891.
EMMA M. NAKUINA vs.. ANTOINE j.
LOPEZ.
Before McCully, j., the jury being
waived.
DECISION.
The action is ejectment. 1t is sat
isfactorily proved that the plaintiff
purchased the premises in question
under the foreclosure suit of the as
signee of the alleged mortgage.
The defendant entered into posses
sion and holds by lease from the
mortgagor made subsequent to the
mortgage. The defendant by bis
counsel makes only the following
contention in law The mortgage
was made to the Hawaiian Invest
ment and Agency Company. limited,
foreign corporation carrying on
business in the Hawaiian Kingdom
The plaintiff in proof of the exist
ence and the authorization to dc
business in this Kingdom of this
company offered proofs of the per
Torrance of the statute requirements
by company styled the Western
and Hawaiian Investment and Agen'
cy Company limited, ETC." The de-
PENDANT objected that the assignment
of the mortgage being made by the
former named company was not
done by foreign corporation auth
orized to do business in this King
dom, whence no title passed to the
assignee.
I think this contention cannot be
legally supported. It goes to the
extent of claiming that the loans Of
this investment company are to be
confscated for the benefit of the
mortgagors who have received the
money and the concurrent mortgages
are to be invalidated, on account OF
variance in the title as filed in the
Office of the Minister OF the Interior
There is no question but that the
mortgagor, Frank Metcalf, to the
corporation therein styled The Ha
waiian Investment and Agency Com
pany, is the one here produced in
the original with the original assign
ments endorsed thereon, upon the
foreclosure of which the plaintiffs
title is based. The particular issne
has therefore become res judicatd
by the decree of foreclosure. The
investment company is not party
to this suit. Frank Metcalf, the
mortgagor, could not set up the de
tense of the non existence OF this
corporation, or its non capacity te
transact business in this kingdom
having admitted so much by trans
acting business with it. Topping VS.
Bickford, 4th Allen, 100, in which
Bigelow, j., says: The defendants
by giving their notes to the corpora
tion in their corporate name az
payees admitted their legal exist
ence and capacity to make and en-
force the contracts declared on, &c
far, at least as to render proof IN
necessary in the opening of the
plaintiffs case" And the defendant
herein cannot make defense for his
possession which the mortgagol
could not make against the forclos
ure. In any view of the case there
appears to be a merely slight mis-
homer or change of name, and
it is sufficiently proved that the
company named in the mortgage is
Identical with the one which has
filed it's articles with the Minister OF
the Interior. "A contract entered
into by corporation under an as
sumed name, may be enforced by
either of the parties. 1t the con
tract is expressed in writing, and the
identity of the corporation can be
ascertained from the instrument it
self, the misnomer is wholly unim
portant, but If necessary other evi
dence may be introduced in order to
establish what company was In
tended" 2 Morawetz on Corpora.
tons, Sec. TIA. / hold chat this de-
Tense is not supported in principle
or by authority. There is no ground
of fact contested. / decide in favor
of the plaintiff and award damages
of twenty five dollars. Judgment
may be entered accordingly.
J. A. Magoon for plaintiff; A.
Rosa for defendant.