The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1895-11-08

The complaint, alter pieaulng Ine
agreement, sets out inter dhd that
the decedent, in pursuance thereof,
maid the sum of five thousand francs
annually to the plaintiff to the end OF
the year 1898, bat paid nothing on the
pripcipal sum of one hundred and
thirty thousand, eight hundred and
, sixty five francs and fifty centimes
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 Islands,
brought by her against said George z.
Trousseau to recover the sum OF s3I,-
$50 2S then due, owing and
payable by the said George 2. 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 (plaln-
tiff was separated from her said hus-
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 aud bring suits there
on in her own name as If she were a
feme sole.
The defendants executors interposed
demurrer, alleging as GROUNDS:
! /. The complaint is Insufficient in
| law.
.. The agreement sued on is void
for want of a good, sufficient and val.
uable consideration.
8. The alleged contract sued on IL
! 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
ise to pay the principal sum,
but only the interest, for
bearance by plaintiff upon Nous
Trousseau's promise TO pay interest
which he was bound to pay without
any new promise and (secondl because
the parties being separated but not
divorced, the statute of 1888, would
not authorize a suit by the wife
against her husband or his personal
representatives.
The law is well settled that forbear
auce to exercise right is good con-
sideration. "a valuable consider
alton, in the sense OF the law, may
consist in some right, interest, profit
or benefit accruiDg TO the one party or
some forbearance, detriment, loss or
responsibility given, suffered, or un-
taken by the other" Currie VS.. Misa
10 l.. R. EXch. 162
"The consideration upon which an
assumpsit shall be founded must be
for the benefit of the defendant or to
the trouble or prejudice of the plain
tiff Aud therefore promise in con
sideratiOn of the forbearance of suit
is good for that is for the benefit of
the defendant, tho the action is not
discharged" l Comyn's Digest p.
l95
Prof LangdelI in his notes to select
cases Part III p. 1922 finds that 'detri-
ment to the prOmisee is universal
test of the sufficiency of considera
ton; i. e. every consideration must
possess this quality, and, possessing
this quality, it il i'm material whether
it is a benefit To the prOmisor or not"
Tested by this rule find that it was
a detriment to Madame TrOusseau
(the prOmisee) to give time to Mons. |
Troueseau, to pay the remainder of
principal debt "as soon as circum-
stances would allow" ii. e. "when |
able")-and the taking Of interest an
nually at less than the Hawaiian rate. |
| hold therefore, that Mons. Trous- !
sesu assumpsit was upon valuable
and the agreement in |
this respect was good. This ground of |
demurrer cannot be sustained.
The remaining question is whether |
the contract itself is imperative and |
void, as having been made between |
husband and wife, who though separ-
ated by judicial decree, We're not
divorced.
The interesting inquiry whether the
of this contract should he |
tested by French or Hawaiian law ht-
comes pertinent. The contract was
made in 1882; the Married Womau's |
Act of 1855 has, therefore, no effect |
upon it. The contract must be tested |
by the law III force at the time it was |
made, whether French or Hawaiian
! am of opinion that it must be judged |
by Hawaiian law.
The contract was drafted here. Itis |
of no significance that il was in the
French language; IT, might have .
been written in any other Ian
guage. The domicil of Mons. |
prousseau was here, and the suit
against him was pending in this |
Court. The contract was To be per-
formed here. Mons Trousseau did not |
engage to pay Madame Troussesu in
Paris. He bound himself to pay TO
the French Consul at Honolulu Ger
tain sum which would be equal to five |
thousand francs in Paris. This means
that if the payment of one thousand |
dollars here would not be sufficient to |
net 5000 francs in Paris, he must bear
the exchange; in case he removed /
from Honolulu, he was to notify the |
Consul of the place where he proposed |
TO establish his new residence. The |
" mere Information 10 Madame
Trousseau by the French Consul at /
Honolulu that any OF the sums agreed .
by Mons. TrOusseau to be paid were |
not paid when due, authorized Madame |
Trousseau to revive the suit. The .
Consul here was to judge whether the |
had been broken.
When tested by the rule that the /
place of the performance of the con-
tract is to be determined by the in
tention of the parties, We find that the
place of the performance was to be at
and the contract is to be
by Hawaiian law. Having
thus held, il is unnecessary to consider
whether the French law is well plead
a 81, .la,,