The Hawaiian gazette., 1896-07-21
OPINION OF THE COURT BY
WHITING, ].

This cause was heard on appeal at
the March term, 1896, of the Supreme
Court. and decision filed affirming the
decision of the Circuit Judge in favor OF
defendants. Now at this June term the
plaintiff moves for re-argument for the
following reasons:
First-That the order of judgment
was improvidently granted under a
mistake and Misrepresentation as to the
facts of the case apparent in the record.
Second-That the fraud and impo-
sition practiced upon the plaintiff and
appellant by the respondents in this
case, as appears of record, have been
overlooked by the Court in the consid-
Grafton of the case.
Third-That the decision as rendered
does not afford the relief which the
facts in the case warrant as appears
from the face of the record.
Fourth-That courts of equity having
a more perfect means of doing complete
justice, and having assumed jurisdic-
ton and heard this cause as in equity,
the record shows that this Court has
applied the technical rules of law to a
contract and the circumstances sur
rounding it which should only have
been considered by the liberal rules
of equity in the spirit of justice.
Fifth-That the many fraudulent
acts, omissions and silence of the re-
spondents as appears of record in the
above entitled cause renders the de-
cision as announced by the Court dis
tinctly against equity and good con-
science, and not supported by the facts
in the record.
Sixth-That the Court omitted to con-
slider the allegations of fraud and es-
topped raised in the case as appears by
the record.
Seventh-That the seven promises,
oral and written, made at different
times during long period of years,
and varying in their terms" referred to
in the decisions of the Supreme Court,
! should have been construed together,
! as they were so blended and inter
woven that they became but the aliquot
parts of one general transaction, hav-
| ing in view but one price of land and
| all the same parties and the Very
/ lease, became the continent from which
| the value of the land was established,
as appears on the face of the record in
the cause, TO which should have been
added the mendacious fraud which es-
/ tops the respondents from taking adj
vantage of their own wrong. On June
1st, 1895, the lease should have been
made to Joseph Vierra, instead of Very,
at $50 per month, and the failure of this
| Court to pass upon the question of
fraud, estoppel, part performance and
deceit, all of which are abundantly set
out in the record, leaves the questions
properly raised by the record unsettled
and the case without decision that is
of any value.
Eighth-That in view of the seven
objections assigned in this motion for
stay of proceedings and for re-argu-
ment of the above entitled cause, it is
manifest that error hath happened to
the great damage of the said plaintiff
and appellant, as by the decision of this
Court appears.
Wherefore, the plaintiff and appel
liant respectfully prays this Court that
the remittitur may be recalled and that
i Fourth Circuit Court be ordered stay
all the proceedings in the case in the
ed, and that the cause may be
placed upon the calendar for re-argu-
ment. That error, if any hath been,
shall be duly corrected, and full and
speedy justice done to the parties afore-
said in this behalf
The rule as to granting a rehearing
adopted by this Court is as follows:
In general, except where decision
is in conflict with an express statute
or with controlling decision to which
the attention of the Court was mot
drawn, motion for re-argument
should be founded on papers showing
clearly that some question decisive OF
the case, and duly submitted by counsel
has been overlooked by the Court"
Wundenberg V. Campbell, Haw.
211.
ing Wo Shang Co. v. Alo., 7 Haw.
Kenway V. Motley, 5 Haw., 123.
At the hearing of the motion for re.
argument, the Court requested counse
to specify particularly the point oil
points he relied upon to bring the case
within the foregoing rule and review
i be had. Counsel for plaintiff stated
that he relied upon part performance;
that permanent improvements had beer
made upon the premises in pursuance
OF the contracts and oral promises
made.
This exact question we have fully
considered in our decision, and we re.
lterate that in relieving a-party who
relies upon part performance of an ora
agreement, such oral agreement mus
oe distinctly proved, and that the acts
OF part performance were made in reli.
ance upon and in pursuance of such
agreement The plaintiff did not SC