The Hawaiian gazette., 1896-07-24


Circumstances allow II. and alleged full
illment OF the condition. 4 general de-
NAL was sufficient traverse Of The al
legation Of the fulallment of the cen
clifton, aud the burden was on the plain
tif to sustain the allegation. The tact
that the condition happened to he The
possession of sufficient assets by the
deeedent did not make it different from
any other condition precedent. the ful-
illment Of which must be shown. The
defense relied on was not the dfijrmn-
tive one of malta bona" bat mere de
NAL of the truth of q necessary allega-
tioc made by the plaintiff.
ae argument on the fourth point is
Substantially that DR.. Trousseau'S
deaS,., by rendering impossible the full
tillmeat of the condition precedent,
makes 1t unnecessary 10 prove fulfill
ment; in other words, that ne c,',-
diional promise became absolute rpon
his Death. A promise % pay suIn OF
money upon the happening of an uncer-
tain event, and which remains ecu
6itional so long as there is doubt
whether the event will ever happen
does not become absolute when il %,
comes certain that the even. will never
happen. In re Bethel. L. r. S4 CHI
Div. sol. was q case similar TO this,
in which the action was brought after
the death of the promisor. but rbe
Court held that proof must bn made
Of The promisor's ability TO pay during
his life.
As to the first point, l agree with the
majority of the Court that decodens's
viii does not show that lis ciycum-
stances allowed him during his life 10
pay the principal sum.
As to the second point also. I agree
with the majority of the Court thae the
executors inventory does nor show
that decedent's estate allowed them.
the executors. TO pay the principal sum.
1t is true, as eontended by plaintiffs
counsel, that the inventory is pr;ma
facie evidence of such assets as are
shown by it, but it must be taken as 2
whole. and, so taken. it shows, total
assets, SS5,9I401." and total liabili-
ties, S19,S4S.61." of which liabilities
$4,000 are notes secured by mortgages,
and therefore preferred claims. Thus
including uncollecte5 accounts as as
sets. and without ieducting the unse-
cured claims, there remain only SEQ
914.O1. which certainly cannot be said
10 allow the payment of the principal
sum. S26.I7S: and this is the most ia
vorahle view for the plaintiff that cen
with any show OF reason be asked To be
taken of the inventory. If the iuTen-
tory is not correct, or if the decedent
had been in fact at any time after The
execution of his agreement able 20 pay
the principal sum, the plaintiff should
have addueed further evidence TO
show il.
Il would seem as il there were moth
! ing further 10 be said. except that ALT
exceptions should be Overruled. since
[ al the points raised by these exceptions
have been disposed o. adversely 10 the
plaintiff; but the majority of the Court
have come TO the conclusion that a new
trial should be granted upon consider
alton of . point which. so far as 1 can
! see. is not raised By the exceptions.
and under the circumstances I deem II
my duty 10 express my views on this
point also.
As l understand IL the majority OF
the Court decide that DR.. Trousseau
vas bound 10 make payments on ac-
count OF the principal sum as fast as he
could; that failure 10 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 ne could pay something on &C
count during his life, and that IS the
/. trial Judge did not take this view OF
the case q new trial should be ordered
Let Us consider these propositions in
their inverse order First. that as he
trial Judge did not take this rev o.
/ the case a new trial should be ORDERED
! The attention OF the trial Judge We
! not called TO this view OF the case
/ and no exception was taken 20 his
omission 70 consider il, and therefore
! Il should not be considered By THIS
! Court See Norris Y. HerbIay. 9 Haw.
( 81; ByrEc = allen. 10 Hav.. -. The
/ trial Court ruled as Z matter OF law that
ability % pay the principal sum must
I BE- shown 70 which ruling no exception
vss taken; The exception il regard ID
the Inventory vas taken 70 the refusal
/ OF failure 10 find IS matter OF fse- tns,
& he Inventory was sufficient evidence
that decedeHt's estate allowed defend
a1-s (ths eIecutOrsl 20 pay said pin
CipaI sum
I Secondly. that the inventory was Ell
I de1ce that Dr.. Trousseau could pay
something On account during his life
4 agree with the majority Of the Court
that the inventory was eTidenee Of this
fact; and for that matter. the will also
vas sufficient Evidence Of the fact. for #
refers 10 most Of The property covered
/ 1y The Inventory. But this fact should
not Be considered on these executions
and i immaterisI in view OF the law a
ind IL
/. Thirdly. that failure on the part Of
I Dr. TEOusseau 10 pay something on &c
count when he could, rendered him q,
once liable for the whole principal sun
know Of No proposition Of law 10 the
effect that, where one promises 10 pay
SUN q money in instalIments. fail
Cre % pay one iustaIlment when dug
/ Dakes al The other Ins.aIInents or the
{. whole SUN due a oaee- Stimulation