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

The circumstances of the case alsC
bear out this view. Madame Trousseal
had brought an action against ID
/ Trousseau upon a French claim SONS
/ fourteen years old. There must have
( been some doubt on both sides as to the
result of the suit. The parties thought
/ it best to compromise. DR.. Trousseau
/ acknowledged an Indebtedness of a GER
! tain amount and promised TO pay part
| of it at once. the balance when his cir
cumstances allowed it. and mean
while a certain amount annually as in
terest. In consideration of this. Ma
dame Trousseau agreed TO discontinue
her suit and accepted these promises,
part of them absolute, part conditional,
in place of her old claim. If the par
ties chose to make such agreement, they
had a right to do so. and cannot com
plain now if they are held TO it. One
installment of 20, 900 francs was ex-
pressly agreed TO be paid at a definite
time Immediately; so of the INSTALL
ments as interest, annually; but the
payment of the balance of the principal
was expressly made conditional upon
DR.. Trosseau's circumstances allowing
him ito discharge the total amount.
There could have been no doubt that
at that very moment he was able TO
pay something more than the exact
90 900 francs agreed to be paid at once
or that he would very soon afterwards
be able to pay something on account,
and. if So he could, under the ruling
of the majority of the Court, have
been sued forthwith, or at least as
soon as it could be shown that he could
have paid something on account and
had not done so. This would prac-
ticaIly deprive him of all benefit of
his contract. The parties certainly
have not during these sixteen years
of the contract placed any such con-
struction upon it, namely, that fall
ure to pay on account, when able,
any amounts whether large OF smalD
would authorize either repeated suits
for such sums as could have been paid
or a suit at once for the whole prin-
cipal sum- No middle ground can be
taken as, for instance, that payments
must be made, not in small sums as
they come in from day to day, but in
reasonably large sums from time to
time when the accumulations have be-
come large enough to make substan-
tiaI payment, for there is no criterion
to go by for ascertaining when the
accommodations would be large enough
to call for a payment and no such
position can be supported by any
thing in the agreement.
Contracts of the kind in question
have often been made and have often
been construed by courts. Two views
have been taken. One is that the
condition is so uncertain as to be void, |
thus leaving the promise absolute and
permittir ., recovery at once without
anv showing of ability to pay. This |
view is held by only a few courts and |
is certainly against the whole tenor |
of the agreement in question. The |
other view is that recovery may be
had only upon showing fulfillment of
the condition, namely. ability to pay |
the principal sum. This is the pre-
vaiIing view No middle ground has
ever been taken elsewhere so far as l
have been able to ascertain.
Where a Just debt exists the Court |
will endeavor to grant relief if possible,
but courts are bound to decide accord
ing to established rules of law and |
agreements as made by the parties |
themselves, and to deny relief some |
times in particular cases where they |
would prefer to grant it, as sometimes |
where q lust debt has become barred |
bv the statute of limitations. In this |
particular case as it comes to this Court |
do not see how the plaintiff can pre-
vail. This is not holding that she has
no remedy at all, but only that she can
rot prevail in this particular case upon |
his particular question.
1t is argued that it is can astonishing |
that the plaintiff can have
ler interest money and not the princi-
pal" This may be quite true where, as
appears to be the case here, the inter
est sued for and allowed is not one of
the installments of 5000 francs eX-
oressly agreed to be paid as interest in
Article of the agreement, but is dam
ages for the detention of the principal |
sum from the time when the principal
sum was supposed, but not found by
the Court, to be due. The logical con-
clusion under these circumstances
would be, not to make another errol
0y allowing the principal sum, but to
correct the first error by disallOwing
he interest. This cannot, however, be
done on this bill of exceptions, as the
plaintiff did not except to the allowance
IF interest If the interest sued for and
allowed were that provided for in the
agreement, it would of course not be
to allow it without the prin-
cipal for, as above stated in regard to
IN installment of principal, it is proper
70 sue for an installment of interest
when due, without suing for the prfn-
eipal for in such cases failure to pay
he interest when due does not render
The principal due or authorize judg- /
nent for it.
Honolulu, July 10, 1896.