The Hawaiian gazette., 1893-05-30

OPINION OF THE COURT BY BIcKERToS, J
The plaintiffs claimed of the de
PENDANT the right to the possession
of twenty tons of paddy then on the
rice plantation of Chulan & Com.
pany. 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 G. Alec
who has 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 NJ. 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 thous-
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. 1t 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.
1T is further agreed that the
amount of sixteen hundred dollars
advanced this day, the receipt of
which is hereby acknowledged, and a
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.
Should the proceeds of the first
crop of paddy not be sufficient to re
pay the amount advanced with in
terest at twelve per cent. per annum,
the remaining balance shall be con.
sidered as part advance for the second
crop, which is not to exceed sixteen
hundred dollars, the said sum with
interest thereon shall be deducted
from second crop of paddy.
"In witness whereof the parties
hereto have hereunto set their respec-
tive hands and seals the day and
year first above written.
(Sig) "CHULAN q Co.
(Sigj M. PHILLIPS q Co.
Witness,
(Sig.) THO. +. LANSING"
This case came on for hearing at
the October term, 1892, before the
Chief Justice and a 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 a duly |
allowed bill of exceptions.
This agreement, on which this &C
ton is based, is on the face of it |
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-
livered; 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 the 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
Turing 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;
ind if the proceeds of the first crop
re not sufficient to repay the amount
advanced with the interest, then the
valance shall be deducted from the
proceeds of the second crop. These
re all conditions and contingencies
things to be done before delivery t
f the paddy. Under this agreement,
the paddy was delivered damaged, I
nd not in good merchantsble con-
ition. would the plaintiffs be re-
uired to receive it We are of
10 o0inion fhau rronld not or c