The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1897-10-05

specific performance equity
Of o e eons w 1e oa the
OPINION OF THE COURT BY FREAR,
This suit in equity for specific performance The bill
forth oral agreement whereby Dond assign Mac
farane his lease Trustees of the B. P Bishop estate
of the premises occupied by him residence Waikiki Homo
lulu and Macfarane ube to Dmond specified portion
of the premises specified rental and upon the terms and
conditions contained in the lease for the remainder OF the term
of the lease and for the entire of renewal extension
thereof that Macfarane might obtain from the Trustees that
the lease assigned by Dmond agreed that thereafter it
agreed suitcase should portions of the
premises considerable different from the portion
originally agreed upon and that Macarane refuses execute
and deliver suitcase of the substituted portions of the
upon the terms and conditions agreed upon
The defendant demurred the bill upon several grounds
the only which need be considered being substance
that the sought be enforced that the last
men in writing required by the satuteof frauds
and that there performance to take it out OF the
statute in equity.
The portion of the statute in question that which requires
to be writing contract for the sale OF lands tene
hereditaments of any interest concerning
them Comp L. 800 There can be no question that the
agreement question contract and that its subject mat
ter Interest concerning lands within the meaning
of the ErdHs Roberts, B. q G. $50. Com
planants argument is that the contract not for sale
and chiefly because there money consideration price
No doubt pecnary consideration necessary element of
sa that usually employed especially with reference
property But the term have different
under special circumstances and opinion considering
peruries the term sae intended in this instance to
have its usual and meaning This have
been the general understanding both here and elsewhere
In Moknai Kdpuniai, Haw $50, it held that gift
of land consideration of love and afec-
ton within the In Nam Chong Co. Lau
hona, Ib 371 the holding that sale used in the
Married Womens Act of 1888 did include Cease said
The sale well be held to include lease under
statutes for instance statute of frauds where such APP
pears be the manifest intention of the legislature In Ka
maue1e Nagamoto, Ib 3s5, the court said: Defendants
contend that the lease surrendered by agreement of
the parties for that required by the frauds be in
wrting-but by operation of law. In Peoples l. r. Co.
Haze Flee Co., Ib for granted by
and counsel that for exchange of leases
within the statute. In Vie7a Ropnf, 10 Haw sol, 345,
likewise taken granted that for renewal
was within the statute In Harrison Bruins, h. 397,
held that for the purchase of lease by Of
several persons joint account within the
Our statute it true differs from the English and
from the many of the United States which either
refer expressly leases contain other words such
tion' transfer, etc. we'll sale" But, as rule the
have paid attention the main purpose of the
than slight differences in wording In states,
however the wording substantially the statute
For instance Massachusetts, the words of the
contract for the sale of lands enemen heredta
ments, of any interest concerning hem Gen. Sts p
527 In Toonsendr Toaonsed Met 49, the parties agreed
that of them should convey certain premises other
and that the other among other things should give back lease
the premises the former executed the
refused give the lease The held the agreement give
the lease be within the above quoted
fH Pdse 81 Vt $50 In Indiana the words of statute
"Any for the sale of lands" Reed ST. of
Fr 295 In Green GrOres 100 Ind 80 agreed that
wife should join her husband mortgage of his land and
that the should acquiring title through fore
closure and purchase convey portion of the land her He
refused to do The agreement held be within the
S
It further contened that if the agreement is within
the there has been such performance thereof
take it out of the statute equity The part performance
lied upon the assignment of the lease by Dimond Macfar
lane Without expressing opinion as to whether that part
performance sufficient take the original agreement for
lease of the statute of the opinion that does
been made the substituted could
been made in reliance upon 1t is refebe the first to
the second agreement. See Opuna q. Kduhi Haw $50;
Lopes Soy Young Ib III; Tierra Ropert H. sol
345 Subject certain exceptions applicable present
the general rule is that subsequent modification of
governed by the rules the original contract
far the of frauds concerned Reed St of FIR
8 Sec. 454 ct seq
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