The Hawaiian gazette., 1893-05-30

oral agreement which has been
partly performed, because Of their
acquiescence in the same, as shown
| by their having received their shares
of the money and allowed tie plant
! ifs to enter upon and occupy the
land, and also because they hsve
spent their portion of the money aud
are unable to restore the plaintiffs 10
their former position.
Now, it does not appear that the
defendants cannot restore the plant
ifs to their former position The
estate at the time Of its division con
sisted mainly Of the money and the
land above mentioned. The land re-
mains as it was, and although the
money has been spent, it does not
appear that the defendants have
not other property out Of which
they may be able to make good any
inequality in the former division Of
the estate. Indeed, plaintiffs do not
claim more than the land in question.
which, as already said, remains as it
was. But, however that may be, the
fact, if fact it be, that by reason
of the defendants acts the plaintiffs
cannot be restored to their former
position, is not of itself sufficient to
prove a contract or to sustain a bill
for the specific performance Of con-
tract, although it may be an addi-
tional reason for granting specific
performance of a contract which is
otherwise proved. Neither is the
mere acquiescence in a state OF
circumstances sufficient 10 support
such a bill. Acts or conduct of a
party which may be relied upon as an
estoppel by way of defense, or even
in support of some other form of bill.
are not necessarily sufficient to sup
port bill for specific performances.
To support such bill there must be
distinct proof of a contract acqui-
esced in by the party sought to be
charged.
The only contract set forth and re-
lied upon in the bill is a written
contract. This was executed by the
defendants attorney in excess Of his
authority and in their absence, and
there is not the slightest evidence to
show that they ever knew or heard Of
the document. There can be no
acquiescence without knowledge.
Herman on Estop. & Res. Jud., Secs.
768, 1929, 1862, 1906: Rauli us. Liai-
kuldHi, Hsw., $50.
But it is argued that there was at
least an acqnieseence in an oral
agreement partly performed, Of
which the defendants must have had
knowledge, for they received their
shares of the money under the agree
ment and allowed the plaintiff Kaa-
hanui to receive her share Of the
money and to take and hold posses
sion OF the land. Without deciding
whether the plaintiffs may rely upon
an oral contract partly performed
where in their bill they have set
forth and relied upon only a written
contract, we may say that in order
to take an oral contract out Of the
statute of frauds on the ground of
part performance, it must appear,
among other things, that the acts Of
part performance are not only such
as are referable TO a contract such as
that alleged, but that they are refer
able to no other title; that they were
done with the knowledge Of the par
ties sought to be charged not only
that they were being done, but that
they were being done on the faith Of
the contract; and there must also be
proper parol evidence of the contract
itself Fry on Spec. PERI. I'D. Ed,
Secs. 557-561, 565 S Am. 4 Eng.
Encyc. Of Law, 740-744; Browne on
st. Of Frauds, Secs. 476, AT, 493. In
the present case not one Of these
is fulfilled.
The money belonged to both the
children and the widow, and was to
be divided among them, contract or
no contract, and the widow by virtue
Of her dover right, had an interest
in the land and was just as much en-
titled to occupy it as were the chill
1ren. The division Of the money and
the occupation Of the land were at
least equivocal acts, and not neces-
sarily, or even reasonably, refera5le
only to contract. It cannot be-
that the defendants knew Of
and acquiesced in these acts as done
n pursuance Of or reliance upon
contract, or that these acts are evi-
ience OF the terms or even the exist
nee of a contract. Nor is there any
'ther evidence to show these things,
,ut on the other hand, the defend
.nts testify that they knew nothing
f the alleged agreement, but sup
,osed the widow had only a life in
crest in the land Nor is it strange
hat they made no objections to her
Exclusive possession of the land, she
,eing their mother. See Browne, st.
f Frauds, Sec. 4S1
Plaintiffs counsel relies especially
n Br05sH U.s. Wheeler, IL Conn, 345, but
nat was an action Of trespass, and
OF bill for specific performances,
nd the party whose acts we're set up