The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-05-02
OPINION OF THE COURT, BY JUDD, CD

OPINION OF THE COURT, BY JUDD, CD
In this case Judgment was affirmed
by the Supreme Court against Redward
and as against Hawaiian Lodge judg-
nent was set aside and new trial or
dered. See decision dated October 81
1895. 10 Haw, The case went back
TO the Circuit Court and at the last Feb
r1ary term it was heard and the Court
reserved the question involved to this
Court, by the following instrument:
Findings and Statement of Question
Reserved and Decision.
The above cause came on duly for
hearing this 9th day of February, A. D.
1896. before me, w. a. Kinney appear
ing for the plaintiff and Cecil Brown
for the defendant Hawaiian Lodge, No
q. F. & A. VI. BY stipulation of coun-
sci on file herein the evidence given at
the former trial of this cause as writ
ten out by the stenographer and filed
herein, together with all exhibits filed
at said trial, have been made evidence
at this trial.
The additional evidence of Paul
Muhlendorf as transcribed by myself
and fled herein and exhibits A, B and
c. were given and filed herein at this
trial and are part of the evidence.
find from the said evidence that the
items in the claim of plaintiffs as set
forth in Exhibit c, amounting TO 81
S26IS. are under the decision of the SUI
urene Court herein, covered by the
plaintiffs Mechanics Lien.
find further that the items in plain
love Iy-E
hibit B. amounting to $2,S35.95, are not
under said decision of the Supreme
Court covered by said Mechanics Lien.
find further that the plaintiffs have
a Mechanics Lien for the items in
plaintiffs said bill OF particulars,
which are set forth in Exhibit G, TO
wit. the sum of 81, 1876. 10, with legal in
terest from June 1St, A. d. 1893, less
payments by the defendants or either OF
them to the plaintiffs for and on &C
count of or which should be applied TO
the items covered by the lien as afore7
said.
/ find further that the sum of $2,3OS
has been paid by the defendants to the
plaintiffs in satisfaction of plaintiffs
claim over and above the amount paid
by said defendants to plaintiffs in sat
isfaction OF cash advances made by the
plaintiffs to the defendant Redward TO
nav labor bills.
How much plaintiffs will be entitled
to a lien for depends upon the applica-
ton to be made of the said sum or 81
sos to plaintiffs claim, and this ques-
ton of the application of said money IS
hereby reserved for the decision or the
Supreme Court upon the pleadings, eX-
hibits and evidence aforesaid. The pre-
else question OF law reserved as afore-
said being this. ITO what items or class
of items in the claim of the plaintiffs as
SET forth in said bill of particulars at
tached to their complaint shall said sum
of 50. 3OS be applied? Judgment upon
said lien for the plaintiffs TO follow
said decision in an amount 70 be de-
terniued according to the decision of
the Supreme Court upon the question
reserved as aforesaid
Three propositions of law may be
applied to appropriation of payments
according TO circumstances First-The
debtor in making a voluntary payment
may at the time of payment direct an
application of il to whatever account
he chooses unless he has assigned or
waived that right.
Second-If the debtor does not do this,
the right passes to the creditor who
may make such application as he
chooses.
THRIFT neither party has made ap-
DlicatiOn, the Court will apply the pay
ments according 20 the Justice and
equity of the case, taking into consider
alton all its circumstances. These prin-
ciples are too we'll settled TO require
citations OF authority
The plaintiff contends % that the
Hawaiian Lodge, defendant, directed
no application Of the payment nor could
il do so, as it had accepted an order
drawn by the contractor Redward upon
the lodge in favor of plaintiff for
all the contract price of the build
ing agreement. We think this pro-
position is sound The making and
acceptance of the order were in effect /
REIMBURSEMENT OF the right by both /
Redward and the lodge to direct any
application of the money. 1t became the /
creditors money
The plaintiff further contends (2) /
that the plaintiff creditor did not, at the /
time the payments were received by
him, make application of the same to /
any specific items in his account, and /
that 80 he did by his letter to the
lodge of December 26. 1895. after the
new trial was ordered, make application
of the payments to sundry articles fur
nished not covered by the lien.
These statements of plaintiffs we
think are erroneous
The account sued upon contains nu-
merous items for material, ETC., fur
nisheu and then follow the various pay
ments made from time to time. with /
a balance brought down. Did not the