The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-07-24


his life
/ As 20 the first point. / agree VIII Il tbs
! majority of the Court that 3tccden5'-
/ will does not show that his cir@um-
/ stances allowed him during his life &c
pay the principal sum.
AS to the second point also. / agree
with the majority of the Court th2e the
executors inventory does ROt show
that decedent's estate allowed Them.
the executors, to pay the principal sum.
II is true, as contended by pldinJiff's
counsel, that the inventory IS prima
facie evidence of such ass sJs as ere
shown by it, but il must be taken as .
whole and. so taken, it shows, total
assets, S35. 91401." and total liabili-
ties, S19.S43.61" of which liabilities
S15, GOO are notes secured by mortgas es.
and therefore preferred claims. Thus
including uncollected accounts as as
sets, and without deducting the unee-
cured claims, there remain only 500,
914.01, which certainly cannot be said
to allow the payment of the principal
sum, $26.173: and this is the most ia
vOrable view for the plaintiff that cen
with any show of reason be asked 10 be
taken of the inventory If the iuven-
had been in fact at any time after The
execution of his agreement able to pay
the principal sum, the plaintiff should
have adduced further evidence to
show it.
1t would seem as if there were moth
ing further to be said, except that all the
exceptions should be overruled, since
all the points raised by these exceptions
ho Of To 2 T,n
plaintiff; but the majority of the Court
have come to the conclusion that new
trial should be granted upon consider
alton of a point which. so far as I can
see, is not raised by the exceptions.
and under the circumstances deem il
my duty to express my views on this
point also.
AS I understand it, the majority of
the Court decide that DR.. Trousseau
was bound to make payments on ac-
count of the principal sum as fast as he
could; that failure to pay any amount
on account when he could, rendered him
him at once liable for the whole princi-
pal sum; that the inventory is evidence
that he could pay something on ac-
count during his life, and that as the
trial Judge did not take this view OF
Let us consider these propositions in
their inverse order. First, that as he
trial Judge did not take this view OF
the case a new trial should be ordcre1.
The attention of the trial judge was
not called to this view of the case,
and no exception was taken to his
omission to consider it, and therefore
it should not be considered by this
514; Byrne V. Allen, 10 Haw., -. The
trial Court ruled as a matter of law that
ability to pay the principal sum must
be shown, to which ruling no exception
was taken; the exception in regard 10 |
the inventory was taken to the refusal
Or failure to find as matter of fact that
the inventory was sufficient evidence
that decedent's estate allowed defend |
ants (the executors) to pay said prin-
cipal sum-
Secondly, that the inventory was evil
dence that DR.. Trousseau could pay
on account during his life.
agree with the majority of the Court |
hat the inventory was evidence of this
act; and, for that matter, the will also
was sufficient evidence of the fact, for it
'efers to most of the property covered |
by the inventory. But this fact should |
lot be considered on these exceptions.
and is immateriaI in view of the law as
find it.
Thirdly, that failure on the part Of
Dr.. TrOusseau to pay something on ac-
count when he could, rendered him at
)nce liable for the whole principal sum.
know Of no proposition of law to the
Effect that, where one promises to pay
! sum of money in installments, fail
Ire to pay one installment when due
makes all the other installments or the
whole sum due at once. StipulatiOns
Ire sometimes made to that effect, as
)ften in mOrtga ges, but in the absence
Of such stipulation an action lies for
such installments only as are due and
unpaid. Whether Article 8 of the agree
nent in question amounts to such
stipulation is a question neither raised
~ these exceptions nor relied on by
counsel If it were such stipulation
t would be unnecessary to consider
he inventory at all, for it is undis
Duted that one installment of 5000
rancs expressly provided for in the
igreement has not been paid. Even if,
therefore,, DR.. TrOusseau was required
o make payments on account when he
ould, then judgment could properly be
siven for only such an amount as the
evidence shows he could have paid; it
could not properly be given for the
whole principal sum upon a showing
merely that he could have paid a part
But, fourthly, I cannot see how the
greement can be construed as binding
)r. Trousseau TO make payments on ac-
cunt of the principal sum as fast as he
OUld There can be no question that l.
he agreement cOntemplates that pay
mems mdy be made on account, but
his is very different from the prOpo-
ition that they must be made. Agree
nents are often made for the payment
# a sum of money at a particular time
With the privilege without the obliga-
iOn) of paying the whole or a part at
n earlier date.
DR.. Trousseau's only promise in this
aspect was to pay the total amount