The Hawaiian gazette., 1896-08-07
OPINION OF THE COURT, BY
WHITING, J.

w - A-NSf -
The declaration AYERS an agreement
between the plaintiffs and the defendant
whereby they agree TO purchase the
lease" OF certain government premises
in Honolulu at public auction, which
the defendant, in pursuance Of said
agreement, purchased, and thereafter
did instruct James A. King, Minister of
the Interior, TO execute the lease TO
plaintiffs and defendant according 10
said agreement; that thereafter the de-
PENDANT, contrary 10 said agreement,
and after plaintiffs had pursuant TO said
agreement been put TO great expense
and Inconvenience, and plaintiffs being
at all times ready TO perform all the
conditions OF said agreement upon their
part, wholly refused TO carry out his
part of said agreement, and induced the
said James A. King TO execute a lease
OF said premises TO him, said defend
ant The plaintiffs claim damages for
breach OF the alleged agreement
The case was returnable at the No
vember term, 1894, of the First Circuit
Court, and defendants answer was a
general denial, but at the June term,
1895. the defendant amended his answer
as follows: Said defendant, by leave OF
Court, amends his answer by adding
thereto the following notice: The de-
PENDANT gives notice that among other
defenses he relies upon the statute OF
frauds
The trial was held at the February
term, 1896. and by direction of the
Court the jury returned a verdict for
the defendant.
The Minister Of the Interior duly ad-
vertised for sale at public auction a
lease OF government lot on the Es-
planade in Honolulu, and at the sale
the auetioneer, a clerk OF the Interior
Department, knocked the lease down TO
defendant and made an entry TO that
effect in defendants name alone at the
time, he, the defendant, being the bid
der.
The plaintiffs offered to prove by oral
testimony that defendant agreed with
them that defendant would bid for and
purchase the lease of land in question
and that he would purchase such lease
for himself and the plaintiffs, and that
defendant broke this contract and took
the lease in his own name and refuses to
let plaintiffs into a share, and for this
breach they claim damages.
The plaintiffs also claim that the al
legged agreement was in the nature
Of a partnership; that defendant agreed
with plaintiffs to purchase the lease and
that the three should be partners in the
lease, and that such an agreement was
not within the statute of frauds and
need not be in writing.
There is no evidence of any mem
orandum in writing TO show the alleged
agreement, and the Court below held
that the alleged agreement was for tbs
purchase or sale OF an interest in lands
and was within the statute OF frauds
and declined TO permit the alleged
agreement to be proved by paroI testi
mony.
/ The Hawaiian statute OF frauds, Sec
1853 Civil Code Comp. Laws, .. 309'
/ provides that no action shall b,
I brought or maintained in any of tn,
/ following cases: Fourth. upoI
any contract for the sale Of lands, tene
ments or hereditaments. or OF any in
Z LELcSL IL VI ND4IcL u4Le l4El-
/ unless the promise, contract or agree
ment upon which such actions shall b
brought. or some memorandum or not
thereof, shall be in. writing, and b
signed by the party to be charged there
with, or by some person thereunto b,
him lawfully authorized"
/ The alleged contract, for the breacl
OF which the plaintiffs claim damages
is clearly a contract for the sale Of a
interest in lands and within the statut
Of frauds, and no action can be main
tanned by plaintiffs for the breacl
thereof, the same being an oral con
tract and the plaintiffs falling to prov
any memorandum in writing such a
Is required by the statute.
| Parsons '. PhiIan, 134 Mass. Jog.
Pickett '. Durham, 109 Mass. 4I9.
Bailey v Hewenway. I47 Mass. 32I
The plaintiffs claim TO have excepte
70 the refusal OF the Court 10 admit Ger
tain evidence offered By them. bu
these exceptions are not set out in tn
bill Of exceptions The bill contains III
following in reference thereto: @At th
trial. the plaintiff. to sustain his cas-.