The Hawaiian gazette., 1893-11-21

OPINION OF THE COURT BY JUDD. q. ].
This is q motion for rehearing of
( this case which was heard and de-
cided on the 18th September, 1893,
on the defendants exceptions.
The ground of the motion is sub
stantially this: That the Court in its
consideration of the exception to the
verdict as being contrary to the evil
dence did not have before it certain
account sales of pinespples shipped
by defendant to San Francisco from
Honolulu though these were before
the jury, but had before it, in place
thereof. another and different &C.
count made by Mr.. Gulick as the
agent of the defendant. 1t was ad-
mitted by plaintiffs counsel that the
account which was before the Court
on the exceptions marked Exhibit
D, had been filed in the first trial
of this case in which the jury dis
agreed and was not filed at the
second trial, which resulted in YER
dict for plaintiff. The account sales
had not been formally filed, but the
witness Gulick had referred to them,
and they were now produced before
the Court and their authenticity sub
stantiated by affidavit. They are
also admitted by plaintiff IS counsel
to be the exhibits shown to the jury.
The issue in question before the
jury was the market value at San
Francisco OF the best kinds of pine
apples, Sugar Loaves, Smooth Leaved
Cayennes, Queens, etc, under an in
struction that the rule for measuring
the damage sustained by plaintiff in
consequence of the contract being
rescinded by the fault of the defend
ant, was the difference between the
market value of the product at San
Francisco and the contract price of
35 cents per pineapple. The evil
dence on the part of the plaintiff,
which was taken by deposition in
San Francisco, was that pineapples
of the description called for in the
contract in good condition brought
from Sc, the lowest price, to So per
dozen, which is the highest price
quoted. Against this was the pro-
duction, on behalf of defendant, of
the account sales of pineapples
shipped by Mr.. Gulick to the firm of
Vervalin & Rowe, and received by
them from June oath to August Sd,
1891, on account Of the defendant.
We remarked that Exhibit D."
which was before us, showing much
less profit, was not conclusive for the
reason that the ordinary or Hawaiian
pineapples were included in the con-
signments with the best qualities, the
subject of this contract, and the
prices realized from each were not
stated. We say now that
the account sales shown to the jury
are even less conclusive" than the
Exhibit D shown us-for the former
speak of SO many crates of pineapples |
received, not designating them
whether they were " best F." or
Hawaiian" The amount for which |
the crates of pines sold is carried out
in gross and it was impossible for
the jury to conjecture what was the
price realized per single pine of the
best varieties. Only one account
sales states the number of crates of
''best" and of Hawaiian in the ship
ment, but here the number of pines
in the different crates is not given.
The Jury had before it the state
ment of the witness Gullck that dur
ing the period of these shipments
the prices of the quality in question
realized as by one invoice 49, cents
and by another % cents. But they
had as we have said the other state
ments of San Francisco dealers of
higher prices. The jury were the
Judges of the weight of the evidence
and the credibility of the witnesses
and found their verdict accordingly.
The Court in declining to disturb
their verdict merely remarked that
The account sales before us, Exhibit
d. we're not concluSive for the reason
stated. The account sales now pro
luced do not alter the situation. The
whole period for which damages
we're claimed embraced period of
lime of more than year after the
late of the last of these account sales
that is, to December 81, 1892.
We therefore decline to allow re-
learing on the exceptions.
P. Neumann for plaintiff; @. W.
l shford for defendant.