The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-04-16
OPINION OF THE COURT, by WHIT
ING. j.


This is an action of assumpsit for
5000 upon the following contract, VIZ:
Studio, Nuuanu Ave,
Honolulu, March n, 1891.
Il agree TO pay Mr.. William King
two hundred doIlars) on receiving the
commission to execute statue for the
Kalakaua Monument Committee or as
soon as moneys for said statue are paid
into my hands.
ALLEN HUTCHINSON -
Judgment was rendered in favor of
the plaintiff by the District Magistrate
of Honolulu, and defendant appealed
on the following points of law:
L. The agreement is illegal, being
made by one whose duty it was to OBJ
tain the best contract without favoring
any person. tie appellee. w. King be-
ing a member OF the I[olakaua Nonu
ment Association.
y. The agreement has not been per-
formed (a) by obtaining Gf that had
been done) a contract for statue, and
OBJ because such contract for statue
was not obtained"
On the second point, the evidence
showed that on March 81, 1891, the de-
PENDANT approached plaintiff with an
agreement to assist him in getting
contract from the Kalakaua Monument
Association for a commission for a
statue. Hutchinson claimed that
Kings services would be of value to
him, and insisted upon giving King the
agreement in question, which defend
ant wrote out himself. Plaintiff testi-
fed that he rendered the services, and
defendant got the commission to exc
cute the bust or statue, and had been
p9d 81 800 or $1,000 The defendant
testified that at the time of the agree
ment with King there was distinct
und aTstanding that it was for a statue
and for a sum of $4,000 at least. ''I
never procured the statue; ] did not
get the statue because the whole thing
lapsed. Three years or more before it
was revived and then it was brought to
a head Immediately in June, 1894.
got the commission for bust by induc-
ing the members to attend the meeting
10 consider a proposition 1 had put in
TO make a bust of kalakaua; bust
was made"
NJ. P. Robinson testified that he was
a member of the original committee in
1891, when the association was first or
ganiZed; the object of the association
was to erect q full-sized bronze monu-
ment of Kalakaua.
On the second point raised, the ques-
ton is whether the contract for a
bust" com within the agreement to
pay for a commission for statue
Statue is defined: "A lifelike rep
resentation of a human figure or ami
NAL in some solid substance as marble,
bronze, iron, wood Oglive's Imperial
Dict.
A solid substance formed by cary
ing into the likeness of a whole living
being; an image as a statue of Hercu-
les or of a lion" ,Webster's Dict.
"A plastic work representing a hui
Nr animal figure generally in
marble or bronze, especially such a |
work nearly life-size or large as distin- |
guished from a statuette and preserv-
ing the proportions in all directions as
distinguished from relief Standard |
Dict
"A figure of a person or animal made |
of some solid substance, as marble, |
bronze, iron or wood. A |
sculptured cast or nodded figure prop |
erly of some size Gas distinguished from |
a statuette or igureine and in the round |
tas distinguished from a relief or an
Century Dict
Bust" is defined:
I'm sculpture The figure of a per-
son in relief showing only the head,
shoulders and breast. The term may be
applied to the head or neck only or to
the head and neck with the shoulders
and breast or to the head with the whole
chest or to the head, neck, breast and
shoulders with the arms truncated
above the elbow" Century Dict.
nio0n nf CT off l
ing the upper part of the human figure.
including the head. shoulders and
breast
% THE proportion of the human
body included between the head and
waist whether in statuary or in the
person" Webster's Dict.
The human head, shoulders and
breast generally without arms as rep
in sculpture Standard Dict.
Thus there appears to be clear and
well-defined distinction between a I
statue and a bust" and the contract
being Ito pay on receiving a commits
sion to execute statue" the plaintiff ,
cannot recover on this contract. he fail
ng TO prove that the original contract &;
Of March, 1891, was carried out. The :
act that three years passed before any ,
commission whatever was given by the a.,
AaIahaua monument Association tends
20 confirm the view that the idea of
erecting a statue of Kalakaua was
lbandoned, and naturally the contract
o pay King fell with it.
We hold that the commission to exc
ute bust" was not in fulfillment OF
he Hutchinson agreement on
which action was brought !
The plaintiff. however. claims that !,
|
statue" to bust so that he was II
liable as if the original agreement had II
'een for bust or statue" and relies
n evidence of Hutchinson. viz: 81
eceived first installment or 4 months I
fter l got commission. Had converse