The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-06-15

ments ii will be easily seen that taking
the evidence most favorable for the
plaintiff and considering both the ora
and written promises, there are at least
two essential elements or terms of the
alleged contract which are not certain
or definite.
First-The term, which appears to be
a mere renewal of the lease, that is, fol-
its term OF five years; a new lease or q
renewal for twelve years; and a new
lease or renewal for twelve or fifteen
years.
SecOnd-The rent. LAS in the original
lease; not to exceed twice the rental
then paid; "at the rental of what the
lands will be worth at the time" ito
pay what it was worth at the time of eX-
piration OF lease" Ito pay $25 per
month";" the same price as other peo-
pie offer" that no price was to be fixed
until expiration of lease.
What can the Court select as the pro-
visions of the contract to be enforced
If we select any of the provisions above
set forth. we cannot say that that was
the one agreed on as part of the alleged
contract. A court of equity cannot
make contract, nor can il in a bill for
specific performance alter it and then
enforce it.
The plaintiff has not proven any con-
tract mutually agreed on and definite
and certain in its terms. If contracts
are not so certain in themselves as to
enable the Court to arrive at the clear
result of what is meant by all the terms
contained in them, they will not be spe-
officially enforced. 1t would be inequita-
bic to carry contract into effect where
the Court are left in doubt as to the in
tention of the parties; for in such case
the Court might decree what the parties
never intended or contemplated
Boston & Maine r. r. V. Babcock, 3
Cush, 22S.
Grace V. Denison, ia Mass, 16.
Parker v. Cartwright, z Haw., $50.
Condert V. Condert, 43 N. J. Eq., 4O6
Hopkins V. Gilman, % Wise, 476
Mckibbin v. Brown, IA n. J. Eq., 13.
LyneS V. Hayden, Admir-, 119 Mass,
1872.
1t is claimed that the plaintiff has
made improvements on the property in
part performance of the oral contract,
and that on that ground specific per-
Torrance should be decreed. 1t is true
that part performance will under some
take an oral contract out
of the statute of frauds. But for this
purpose there must be clear proof of the
contract itself and that the acts of part
performance were made in reliance up
on and in pursuance of the contract.
Eyre V. Eyre, 10 N. J. Eq., 1922
This has not been done in this case.
There were many other questions ar
gued by counsel at the hearing, relating
to want of consideration for the alleged
promises, agency of the members of the
Roman Catholic Mission at HiIo, notice
to Very, the co-defendant, of the alleg-
ed contract before he took the lease he
now holds of the premises in question,
of evidence, variance be-
tween the allegations of the bill and
the proofs, and other minor points,
all of which we do not deem it necessa-
ry to discuss.
The appeal is dismissed and the case
is remanded to the Circuit Court,
Fourth Circuit, for such further pro-
ceedings as may be necessary.
G. f. Little for plaintiff. P. Neu-
mann and F. NJ. Wakefield for defend
ants.
Honolulu, May &c, 1896.