The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-11-06

the SUN Oh udS hOI Drcn pAib
at the date when IL fell due.
This agreement is made In three
originals, one for Mons. Trousseau
the second for Nine. Trousseau, and
the third for the Bureau OF the French
Consulate at Honolulu.
At Paris, the tenth day Of June, A
d. 1882, for Nine. Trousseau, and al
Honolulu the thirteenth day OF July,
1852, for Mons. Trousseau.
In approval of the foregoing instru
ment. Sgd + TRoUssEAU,
nee Vaunois
In approval of the foregoing instru'
ment. (Sgd.) q TROUssEAU."
The bill of particulars claims
amount OF principal due and unpaid
as per the agreement executed by de-
PENDANT July 13, 1SS2-S26, l73 and
interest on the said sum from lst
January, 1894, at ) per cent, Sll5S l6i
total, So, 1881 IS.
The complaint, after pleading the
agreement, sets out inter ALA that
the decedent, in pursuance thereof
paid the sum OF five thousand francs
annually 10 the plaintiff to the end Of
the year 1893, bat paid nothing on the
| pri3cipal sum of one hundred and
thirty thousand, eight hundred and
sixty five francs and fifty confines
! That the agreement declared on was
/ made in consideration that the plain
/ tiff would fOrbear to proceed in GER
! tain action then pending in the Su-
preme Court OF the Hawaiian Island,
/ brought by her against said George p.
| TrOusseau to recover the sum of $751;
| S62 2S then due, owing and
payable by the said George p. Trous =
seau to plaintiff upon the judg
ment of a French Court, and that
plaintiff, upon the execution and de-
livery of said agreement, discontinued
her said action, and that at the date of
the agreement declared on she (plain-
tiff was separated from her said bus
band by decree of French Court, and
said decree was. and until his death
remained, in full force and effect, and
that by the law OF France and also by
the law of Hawaii, at the date of said
agreement, plaintiff had the right to
make contracts and bring suits there
on in her own name as if she were
feDle sole.
The defendants executors interposed
a demurrer, alleging as grounds:
/. The complaint is insufficient in
law.
2. The agreement sued on is void
for want of good, sufficient and val
liable consideration.
8. The alleged contract sued on Is
imperative and of no effect, being an
attempted contract between husband
and wife.
The demurrer was sustained by Cir
cult Judge Cooper, on the ground
(first) that the agreement does not
show any consideration for the prom
Use to pay the principal sum,
but only the interest, for
bearance by plaintiff upon Mons.
Trousseau's promise to pay interest
which he was bound TO pay without
any new promise and (secOnd) because
the parties being separated but not
divorced, the statute of 1888, would
against her husband or his personal
representatives.
The law is we'll settled that forbear-
ance to exercise a right is good con-
GA valuable consider
alton, in the sense OF the law, may
consist in some right, interest, profit
or benefit accTuing to the one party or
some forbearance, detriment, loss or
responsibility given, suffered, or I'M |
taken by the other" Currie VS.. Misa |
10 l.. r. Exch. 162.
"The consideration upon which an |
shall be founded must be |
for the benefit of the defendant or TO
the trouble or pre- udice of the plain
tiff. And therefore a promise in con-
of the forbearance of suit
is good; for that is for the benefit of
the defendant, tho the action is not
l Comyn's Digest p.
1875.
Prof. Langdell in his notes to select
eases Part III p. 1922 finds that ''detri-
nent to the promisee is universal
test of the sufficiency OF considera
ion; i. e. every consideration must
possess this quality, aud, possessing
his quality, it is i'm material whether
t is a benefit to the promisor or not"
Tested by this rule find that it was
/ detriment to Madame TrOusseau
the promisee) to give time to Mons.
rousseau, to pay the remainder of
principal debt las soon as circum-
tances would allow" ii. e. "when
Lble")-and the taking of interest an
lually at less than the Hawaiian rate.
hold therefore, that Mons. Trous-
eau's assumpsit was upon valuable
considerations and the agreement in
his respect was good. This ground of
emurrer cannot be sustained.
The remaining question is whether
he contract itself Is imperative and
old, as having been made between
husband and wife, who though separ-
ted by judicial decree, were not
divorced.
The interesting inquiry whether the
alidity of this contract should be
ested by French or Hawaiian law be-
ONES pertinent. The contract was {
made in 1882; the Married WOman's
yet of 1SSS has, therefore, no effect
pom it. The contract must be tested
Y the law in force at the time it was [
made, whether French or Hawaiian. {
am of opinion that it must be judged
Y Hawaiian law.
The contract was drafted here. 1t is t
no significance that it was in the {
'rench language; it. might have :
cen written in any other Ian [
uage. The domicil of Mons. c
rousseau was here, and the suit s
gainst him was pending in this
curt. The contract was to be per- G
)rmed here. Mons Trousseau did not q
ngage to pay Madame TrOusseau in
'aris. He bound himself to pay 70 [
ne French Consul at Honolulu a GER
ain sum which wOuld be equal to five :