The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-05-29

OPINION OF THE COURT, UPON REHEAR-
ISG, By FREAR,
1t Is unnecessary TO repeat the facts
Of this case which were set forth 10
the former opinion of the Court. II
is sufficient to say that one Henry
Gordon, deceased, interstate in 1879,
leaving property consisting chiefly OF
a half interest In a plantation at
Waialua, Oahu, which was afterwards
sold for S27, 500, and also a small
piece of land at Lahaina, Maui.
The plaintiff Kaahanui was the
widow, and the defendants Margaret
and Maria and certain others were
the children of said Gordon. By
way of compromise and settlement
of the estate, a written agreement
was executed by A. j. Cartwright,
as attorney in fact of both the
plaintiffs and defendants and Ger
tain others, and by w. r. Castle, az
attorney in fact Of one Of the other
children, whereby the widow was TO
have in lien Of dover the land ut
Lahaina and $500, and the children
were TO have the balance of the
money. The widow received the
$500 and entered upon and has
ever since been In possession OF the
land. The children received the
balance of the money and the de-
PENDANTS have since spent the
amounts received by them. The
bill, which is for specific perform
ance of the agreement to convey
the land, was dismissed on the
ground that the attorney who exc
cuted the agreement on behalf of
the defendants exceeded his au-
thority.
1t is now urged, upon rehearing
granted by the Court, that, admitting
that the attorney exceeded his au-
thority, the defendants are never
theless estopped from denying the
written agreement, or at least an
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 the plant
ifs to enter upon and occupy the
land, and also because they have
spent their portion of the money and
are unable TO restore the plaintiffs to
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, IL 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 contract or to sustain 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
OtAcIWloc pIOfco. 4tcltAcI 10 tuc
mere acquiescence in a state of
circumstances sufficient to 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 performance.
To support such a bill there must be
distinct proof OF contract acqui-
esced in by the party sought to be
charged.
The only contract act 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.
76S, 1929, 1862, 1866: RauHt Us. Lidi-
kulani, Haw., $50.
But it is argued that there was at
least an acquiescence 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 nh1a e are eo not only sueh
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 thev were being done, but that