The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1898-03-11
OPINION OF THE COURT BY FREAR. j.

The ibeant let the schooner 'Mahimah' to Ho Pal
the months from June ~ 1894 for the
1926 per month"; the crerer bear the expenses of
ing, repairing and furnishing the vessel with certain
cepons and the expiration of the term to surrender and
Weld up the said schooner the said party of the first part
ibeant in good condition she is ordinary and
excepted" The beee, Aho joined in the charerpary
guaranteeing the payment of the 1926 per month and the faith
full performance by the chareer of all his agreements and
covenants
During the of the charter November A. 1894, the
wrecked while beating up the channel leading
the harbor at Waaua, Oahu, and became total loss
This libel for $2500 damages for the failure OF the charterer
Surrender and yield up the schooner the at the
expiration of the term as agreed
The Circuit Judge the libel upon the grounds that
the loss occurred through the Ac of Cod and not through
any fault of the chareer and that the covenant to
surrender the vessel at the expiration of the term only an
expression of what the law would imply the absence of
express and left the parties subject the
law rule that baee obliged only exercise due and
liable for losses occurring through fault of his
evidence the finding of the Circuit Judge that the
loss occurred through fault negligence OF the master or
be sustained The main question whether the
chartere obliged the schooner at all hazards
only he prevented from doing through
fault of his 1t will be unnecessary to review each OF the
cited by counsel both sides They relate
general class of what called impossible agreements
There are several classes of ageementose the per
of which impossible in themselves is after
wards becomes impossible by law those the performance OF
which impossible by default of of the parties and
those performance of which impossible in fact becomes
impossible without the default of either party Pollock Contr
seq The agreement question belongs to the last
toned class The rule in regard this class that the agree
becomes void according the intention OF the
parties that the should be conditional
upon its performance being continuing possible in fact In
other words the question of construction 1t 1T was IN
tended that the charerer should the vessel to the
any be liable in damages for not doing So that IS
intended that he should take the entire risk and insure
the of the vessel he should be held to his agreement
he prevented from performance by inevitable
accident The loss would have to fall OF the parties and
it should naturally fall the who assumed the obligation
and did not take the precaution to expressly limit his liability
tboO tb0r pd
returned only in it should be possible to do and 1t be-
impossible do through fault of the chartere he
should be held There being obligation indemnify
case the loss would where FELL the charterer
would lose the value of the vessel during the remainder OF the
term and would lose its value thereafter The in
of the parties may be expressed implied The
cited by counsel of caehose holding under certain
that exceptions the contractors obligation can
be allowed unless expressly provided for and those holding
under certain that exceptions
implied. The two classes IN perfect harmony
The which exceptions presumed to have been M
tended those in which the parties have expressly agreed to
do merely what the law would IMPLY and III winch the law
imply the exceptions well the rule for in such
the parties by expressing the usual rule would presumably IN
tend that should carry with usual excepons and those
which the performance of the depends the
of certain thing condition of circumstances
in which the parties apparently have taken
thing granted and have contracted that basis and would
presumably have contracted differently had they contemplated
different circumstances To Illustrate apparently absolute
marry perform personal services subject to
the implied condition that the person shall continue to live.
&c. obligation deliver future time particular horse,
whether sold hired end if the horse die meanwhile
to make bring into existence thing would
naturally be subject exceptions unless expressed,
build and complete house upon the land of another
by certain day The destruction of the house by lightning just
before its completion would not nonperformance
School Dist Dduchy % Conn $50 But contract merely
repair house already in existence would presumably be
the basis of continuance of It's existence In such
of the house by fire prior the completion
of the work would excuse performance Lord o. Wheeler
Gray 2S2 See also Wells Cdndn, 107 Mass 514. The
distinction between the classes of cases we'll illustrated by
decisions constituting certain usually found leases
The maintain the premises in repair &C., if made
without express exception qualification, is held perhaps by
somewhat strained construction to be absolute undertaking
with implied exceptions and the obligation continues though