The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-05-26

could not be maintained under il.
OPINION OF THE COURT BY BIcKERToN, J
The plaintiffs claimed of tie de
PENDANT the right to the possession
of twenty tons OF paddy then on the
| rice plantation of Chulau &c Com
papy, situated at Waiahole, Koolau
poke, Island of Oahu, under an
agreement or contract signed by the
plaintiffs and Chulan & Company
consisting at that time of O. Alec
who Las since died intestate), dated
September 23d, 1891, in words and
figures as follows:
This indenture, made this 23d
| day of September, 1891, by and be
tween Chulan & Co. of the first part
and III. Phillips & Co. of the second
part, witnesseth:
"That the party of the first part for
and in consideration of the sum OF
sixteen hundred dollars advanced to
them this day, do hereby agree to
sell and deliver in good merchantable
condition to the parties of the second
part at Aswan's rice mill at Waia
hole, Island of Oahu, all of two crops
of paddy raised on their plantation
at Waiahole, the quantity not to be
less than forty tons or eighty thoas-
and pounds each crop.
"The first crop to be delivered be-
tween the 18th OF May and 18th of
June, 1892, and the second crop be
tween November 18th and December
18th, 1892 It is understood and
agreed by the parties of the first and
second part, that the price for the
paddy to be delivered as stated above
is to be the ruling price at the time
of delivery as established by j. A.
Hopper.
cit is further agreed that the
amount of sixteen hundred dollars
advanced this day, the receipt of
which is hereby acknowledged, and
further advance of five hundred dol
lars, to be made during the month of
March, 1892, is to be deducted from
proceeds of the first crop of paddy.
''Shoald the proceeds of the first
crop OF paddy not be sufficient 70 re-
pay the amount advanced with in
tsrest at twelve per cent. per annum,
tie remaining balance shall be con-
sidered as part advance for the second
crop, which is not to exceed sixteen
niIndred dollars, the said sum with
ioterest thereon shall be deducted
from second crop of paddy.
''Iu witness whereof the parties
hereto have hereunto set their respec-
tive hands and seals the day and
year first above written.
(Sipl ssCHUIAN IL Co
(sig.j IN. PHILLIPS & Co.
"Witness,
(Sig.) "THEo. +. LANSING"
This case came on for hearing at
the October term, 1892, before the
Chief Justice and jury, and at the
close of the evidence the Court, on
motion of defendants counsel, in
structed the jury to find verdict for
the defendant on the ground that the
agreement in evidence disclosed an
executory agreement in which the
title to the paddy did not pass to the
plaintiff, to which instruction the
plaintiffs counsel took an exception.
The matter now comes here on duly
allowed bill of exceptions.
This agreement, on which this &C
ton Is based, is on the face OF it
executory; from the language Of the
document itself no other construc-
ton can be put on it; for instance,
the words "do hereby agree to sell
and deliver" mean that something is
to be done, not something that is
done. Then it is required that the
paddy shall be in good merchant
able condition." that is, it shall be
put in that condition before it is de
Iivered; again, the quantity shall
not be less than forty tons each
crop. Then again, the first crop
shall be delivered between the 18th
of May and 18th of June, 1892, and
the second crop between November
18th and December 18th, 1892, nearly
fifteen months after the agreement
was made. Then the price to be paid
for the paddy to be delivered was to
be tne ruling price established by j.
A. Hopper at the time of the delivery.
Then there IS an agreement for a
further advance OF $500 TO be made
during the month of March. 1892.
which, together with the $1,000 first
advanced, is to be deducted from
proceeds of the first crop of paddy;
and If the proceeds of the first crop
are not sufficient to repay the amount
advanced with the interest, then the
;,ai----., si.siiii - deducted from ;av
proceeds of the second crop. These
are all conditions and contingencies
things TO be done before delivery
of the paddy. Under this agreement,
IL the paddy was delivered damaged,
and not in good merchantable con-
djtion. would tho plaintiffs loo re-.
auired 60 receive ~ We are ~
the opinion they would not or,
should the crop be destroyed 10y IRE
ur other casualty certainly the loss
wouid not fall GA the plaintiff or
shsult Cbuiau 4 c. BE- unable for
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