The Hawaiian gazette., 1896-07-24


ments nay be made on account. but
This is very different from the propo-
sition that they niHsf be made. Agree
ments are often made for the payment
Of sum of money at n particular time
with the privilege (without the obliga-
lionl Of paying the whole or part at
an earlier date.
DIR, Trousseau's only promise in this |
respect was to pay the total amount"
If and as soon as his circumstances al !
low him. This cannot be construed !
to mean that he must pay each part,
IL and as soon as his circumstances al |
low him. Similar promises have often
been made. but such construction has
never been placed upon them. See. for
instance. the case of Salinas V. Wright. !
II Tex. 572. case very similar to this, |
in which there was an absolute promise
coupled with similar condition. as
follows: Il am indebted to John Wright
in the sum of one hundred and forty
eight dollars; which sum l bind my
self to pay, as soon as circumstances
will permit me-" See also In re Bethel.
L. r. 81 Oh. Div sol: Mattocbs V. Chad
wick. Il Me. S13; Shepherd V. Thomp-
son, 100 [. S. 2S9; Bidwell V. Rogers.
10 Allen 1875; Laforge V. Jayne, Pa.
St. 412. And in the case at bar such
construction appears not to have been
thought of until suggested by a member
of this Court
The circumstances of the case also
bear out this view. Madame Trousseau
had brought an action against Or
Trcusseau upon q French claim some
fourteen years old. There must have
been some doubt on both sides as to the
result of the suit. The parties thought
il best to compromise DR. Trousseau|
acknowledged an Indebtedness of a Ger
tain amount and promised to pay part
of it at once. the balance when his cir
! eumstances allowed it, and mean
/ while a certain amount annually as in
/ tereSt, In consideration of this. Ma
dame Trousseau agreed TO discontinue
4 her suit and accepted these promises,
/ part of them absolute, part conditional,
/ in place of her old claim. If the par
! ties chose to make such agreement, they
/ had right to do so, and cannot com
/ plain now if they are held to it. One
y
pressly agreed TO be paid at a definite
time, Immediately; so of the Install
ments as interest, annually; but the
| payment of the balance OF the principal
was expressly made conditional uDon
/ DR.. TroSseau's circumstances allowing
him TO discharge the total amount.
I There could have been no doubt that
at that very moment he was able to
pay something more than the exact
I 10000 francs agreed to be paid at once
:. or that he would very soon afterwards
be able TO pay something on account
and. If so, he could, under the ruling
OF the majority of the Court, have
been sued forthwith. or at least as
Z soon as it could be shown that he could
have paid something on account and
had not done so. This would prac-
ticallv deprive him of all benefit of
his contract The parties certainly
have not during these sixteen years
OF the contract placed any such con
struction upon it. namely, that fail
ure TO pay on account, when able
any amounts whether large or small
would authorize either repeated suits
for such sums as could have been paid
or a suit at once for the whole prin-
cipal sum. No middle ground can be
taken, as, for instance, that payments
must be made, not in small sums as
they come in from day to day, but in
reasonably large sums from time to
time when the accumulations have be-
come large enough to make substan-
tial payment, for there is no criterion
7 10 go by for ascertaining when the
aceumuIations would be large enough
10 call for a payment and no such
position can be supported by any
thing in the agreement.
Contracts OF the kind in question
have often been made and have often
been construed by courts. Two views
; have been taken. One is that the
condition is so uncertain as to be void,
thus leaving the promise absolute and
permitting recovery at once without
|. any showing Of ability to pay. This
view is held by only few courts and
lis certainly against the whole tenor
of the agreement in question. The
other view is that recovery may be
had only upon showing fulfllment OF
the condition. namely. ability to pay
the principal sum. This is the pre-
vailing view. No middle ground has
ever been taken elsewhere so far as
have been able 10 ascertain.
I Where a just debt exists the Court
\ will endeayor to grant relief il possible,
but courts are bound TO decide accord
. ing 10 established rules Of law and
] agreements as made by the parties
themselves, and TO deny relief some
|. times in particular cases where they
/ would prefer TO grant it, as sometimes
where a just debt has become barred
By the statute Of limitations. In this
particular case as it comes 70 this Court
do not see how the plaintiff can pre-
{ vail This is not holding that she has
j no remedy At all. but only that she can
not prevail in this particular case upon
this particular question.
! It is argued that II is IAN astonishing
{ proposition that the plaintiff can have
4 her interest money and not the princi-
/. PAL This may be quite true where, as
. appears 10 be the case here. the inter