The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-09-20


OPINION OF THE COURT By JUDD, C. J..
This is an action for damages for
breach of a contract made by the
parties on the 10th of April, 1890,
wherein Kidwell agreed to sell to
Camarinos for the term of thirty
months from the 1st July, 1890, all
the fine quality pineapples, viz,
Sugar Loaves, Queens and Smooth
Ceyennes grown for sale by Kidwell,
the pineapples to weigh three pounds
and upwards and to be delivered at
the store of Camarinos, In Honolulu,
In good condItion-Camarinos wac
to pay 35 cents for every such pine
. apple delivered in accordance with
the above conditions. At the first
trial In the Supreme Court at the
January term, 1892, the jury disa'
greed and were discharged. At the
April term, 1892, the case was re-
tired and the jury 1.-TWO dissenting)
found a verdict for the plaintiff
Camarinos. S51275 special damages
and $4,000 for probable profits.
Two bills of exceptions have been
allowed defendant. The first is to
the ruling of the trial, Justice allow
ing an instruction to the jury asked
for by the plaintiff. The second is
TO the Justices refusing to grant a
new trial on the ground that the
verdict was contrary to law and the
evidence. There had been, previous
TO the contract In question, dealings
between these parties respecting
pineapples of which Mr.. Kidwell was
an extensive cultivator and MIR.
Camarinos having a fruit store sell
ling pineapples In Honolulu and also
shipping them for sale to San Fran
cisco.
Up to June, 1891, that is for a
period of about eleven months,
Kidwell delivered pineapples to
Camarinos in good condition as
to weight and ripeness which he
either sold here or shipped to
California The evidence for the
plaintiff is to the effect that most of
the pineapples delivered had been
either poisoned by the insertion of
corrosive substance or acid which
destroyed the growing ability OF the
stop" or Grown" or tuft OF leaves on
the summit of the pineapple, or that
a sharp instrument had been thrust
down into the middle of the crown,
either of which caused the fruit to
decay and spoil. Plaintiff claimed
that the shipments to California
showed loss from decay OF the pine
apples which damaged him as found
by the jury in the sum of S51275.
The defendant denied using any
corrosive substance or acid on the
fruit, but admitted that he inserted
a chisel in the crown of the fruit
which removed its centre or growing
point, while still growing, which he
claimed tended TO increase the size
OF the fruit and did no damage to the
edible part. 1t was left to the jury to
saw whether the acts Of the defend
ant caused the fruit to decay and
damage the plaintiff. Plaintiff re-
fused, June 9th, 1891, to receive any
more pineapples mutilated as al
legged by the defendant, and no more
we're teudered thereafter by defend
ant. The plaintiff asked the follow
ing instruction, which was given:
"The jury is instructed that under
the contract the defendant was OBJ
hged to deliver the plaintiff pine
apple, which include the fruit with
the crown. and defendant had no
more right to mutilate the crown
than the fruit itself"
IL would seem at first reading of
this instruction that the Court had
taken from the jury the question
whether a ''pineapple" as matter of
fact was composed of the "crown"
and the edible part together. If this
was all that the Court said 1t
would be erroneous, for the jury
were the judges of the question as
to what constituted a pineapple.
But in the Courts charge it based
this instruction that pineapple In
cluded the crown with the fruit part,
upon the admission of the defendant
that in order to make up the con-
tract weight of three pounds and
over to each pineapple, he included
the top with the edible part, and the
Court said it was not an open ques-
ton of fact TO pass upon, because
Mr.. Kidwell had admitted that the
crown was a part of what he had
sold and what MIR. Camarinos had
bought. And in regard to the cutting
of the tops the Court left 1t to the
iury to find on the evidence whether
the defendant cut the tops when they
were half grown, with the idea OF
stopping the growth of the top and
forcing the growth to enlarge and
improve the fruit, and that such cuts
would heal up defendant showing
frnit which had been treated In this