The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1897-02-13


This a bill in equity for the cancellation of chatte
upon the grounds O that is ambiguous defective and
Insufficient and 81 that at the time it was made the mortgagor
nsOvent and the had reasonable to believe
him to be insolvent
The arguments upon ground That location
of the property the of Indebtedness and the time of
payment and insufcently described; and that
the bound make the future advances for
which the mortgage purpors to have been part
security The property described the stock trade
belonging and situated in Honolulu pertaining the
business carried on by me at said Honolulu This is sufficient
description of the location appears the face of the
and the exrnsic evidence confirms this view. The
mortGaoor had nt one and that well known place of
business in Honolulu The mortgage purports have been
made for consideration of $6OOO and security for the
Indebtedness of the morgagor to the morgagee with interest,"
shown by agreement referred therein, and also
security Tor such Indebtedness II any as should IN the future
be incurred by the the mortgage for goods
The of the Indebtedness need be stated in figures
1t sufficient if the mortgage appears, this have
been made for valuable considerations and contains sufficient
of Indebtedness
NO time OF payment need be named Ii none named IN the
note other the debt payable
demand AS future advances mortgage is good for such
advances have been made whether the mortgage bound
make them whether there limit fixed
The Circuit Judge sustained the bill and ordered the mortgage
cancelled the second ground namely that the morgagor
nsoven and that had reasonable believe
him to be nsoven We have come to different conclusion The
these: NJ Levy, after conducting retail
merchandise business in Honolulu for year and eight months,
found himself indebted in July 1895 book account balances
PENDANT corporation 81 01215 sundry other creditors
little 5000 Being then pressed by H. W. Schmidt Sons,
who had carried him that me he applied the defendant
him thereafter After less negotiation
three weeks Levy and the defendant entered into written
agreement August 1895 whereby purchase of
the defendant goods required for his business and pay there
for weekly nstaments the total receipts of his business less
necessary expenses keep the fixtures and goods insured
give defendant mortgage of the render defendant
monthly accounts annually allow his books be
defendant examination, and pay debit
balances Before entering this the defendant
the levy and
by that his stock goods OF the cost value OF about
$4400 and that his Indebtedness above stated except
that he said the Indebtedness H. W. Schmidt Sons only
OOO that they would settle for about
Defendant thereupon declined the proposition but
after further delay Levy said that H w Schmidt & Sons would
be willing settle for 81 800 Defendants head clerk James
Wakefield merchandise department. through whom the
negotiations principally conducted hereupon ndorsed in
his but behalf of the defendant three of
$500 each, made by Levy and payable to H. W. Schmidt q
and three months respectively and received
from Levy bill made to Levy and signed by ii. w.
Schmidt & Sons follows: august l. To per bill
ncluding stock and fxtures)
Settled by for endorsed by James
Wakefield H. W. Schmidt & Sons As matter of fact the
settlement between Levy and H. W. Schmidt & Sons
follows: Levy gave besides the $500 ndoed $4,000
unndOred payable after the ndored notes and the total
Indebtedness of $164O62 be considered cancelled only
payment of the but this unknown
the defendant There evidence as to whether the S6Oo
owing other creditors DUE but there evidence that
and defendant orally
payment Indebtedness Thus appears
have been known the defendant the date of the
Levy stock price amounted about $440O, and his
Indebtedness about $780, of which he had refused
failed pay for days after the had maured
quired by the bankruptcy statute in order to make him bank
rupt The mortgage made September "a 1895 At that
time Le condition had been changed to this One
for $500 had been paid and goods the value of
about $1,000 had been ADDED his stock the Indebtedness
the defendant being thereby considered increased The sales
had small of the cholera then prevailing
had become bankrupt by of of these changes
August l. 1895. He adjudged bankrupt year
later September 1896 Prior to that date the three in