The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-08-05
OPINION OF THE COURT, BY
WHITING

WHITING, J.
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, lin pursuance of said
agreement" purchased, and thereafter
did instruct James A. King, Minister OF
the Interior, to execute the lease tC
plaintiffs and defendant according to
said agreement; that thereafter the de-
PENDANT, contrary to 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 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 adj
vertised for sale at public auction a
lease of government lot on the Es-
planade in Honolulu, and at the sale
the auctiOneer, 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 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 the
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 parol testi-
mony.
The Hawaiian statute of frauds, Sec
1853 Civil Code Comp. Laws, D. 5000
provides that mo action shall be
brought or maintained in any of the
following cases: Fourth. upon
any contract for the sale of lands, tene-
ments or hereditaments, or of any in
terest in or concerning them,
unless the promise, contract or agree
ment upon which such actions shall be
brought, or some memorandum or note
thereof, shall be in writing, and be
signed by the party TO be charged there
with, or by some person thereunto by
him lawfully authorized
The alleged contract. for the breach
of which the plaintiffs claim damages.
is clearly a contract for the sale of an
interest in lands and within the statute
of frauds, and no action can be main
tanned by plaintiffs for the breach
thereof, the same being an oral con-
tract and the plaintiffs failing to prove
any memorandum in writing such as
is required by the statute.
Parsons V. Philan, 1874 Mass. 109
Pickett V. Durham, 100 Mass, 49,
Bailey V. Hewenway, LAT Mass, 327
The plaintiffs claim to have excepted
TO the refusal of the Court to admit GER
tain evidence offered by them, but
these exceptions are not set out in the
bill of exceptions. The bill contains the
following in reference thereto: cat the
trial, the plaintiff to sustain his case,
offered certain evidence, which was
ruled out by the Court. as will particu-
arly appear from the transcript of the ,
Court reporters minutes of the pro- ,
at the trial of said cause. to !
which several rulings of the Court the :
plaintiffs duly excepted"
We have repeatedly held that all ex- !
.eptions relied on by the appellant must
appear on the face of the bill of excep- +
ions, otherwise this Court cannot con
ider them.
Secs. 72, 70 and "A. Chap. 81, Laws 9
1872 +
Kapuakela V. Iaea, Haw., 555. :
De Fraga V. Port. Nut Ben. Soc, 10 Z
law. - June T.. 1895. +
Haze V. Kuluwaimaka, 10 Haw., -
une t, 1896. p
Exceptions overruIed. ?
P. Neumann for plaintiffs; Hartwell, +
'hurston & Stanley for defendant !
Honolulu, July 90, 1896 {
HE IS EXEMPT. S