The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1899-09-19
BY JUDGE PERRY
Decision on a Bill for
Specific Performance.
The Case OF Mak.e Sugar Company
Asairs, Tuck Chew U.c dsd In
Favor Of P,aintff.

In the Circuit Court yesterday Judge
Perry handed down his decision In the
case of the Makee Sugar Company, a
corporation. VS.. Tuck Chew. a bill for
specific performance and other relief,
as follows:
The decision on the demurrer suffi-
GENTLY states the case as disclosed by
the pleadings then before the court.
Upon the everything of the demurrer,
respondent filed his answer, wherein
he denies that he ever consented or
agreed to modify the lease of July l.,
1894, as alleged in the bill or to exc
cute the lease as thus modified or any
new lease embodying such modifica-
ton. He also denies that he ever in
pursuance of any agreement or other
wise executed modified copy of such
lease.
The questions of law now raised as
to the jurisdiction and propriety of
granting relief in equity, were pre-
scented and disposed Of on the demur-
rer. The only issue now before the
court Is one of fact, to wit. whether
or not the respondent did agree to eX-
ecute a modified copy of the lease Of
July l, 1894, or. rather, a new lease
containing such modification.
On behalf of the complainant three
witnesses, William Blaisdell G. II.
Fairchild and zee Tai. testify posi-
lively that the respondent, on Sep
TENDER IL, 1894, after being charged
with making sales of rice contrary to
the provisions of the lease of July l.,
1894, agreed, at Blaisdell's request. to
add to the lease a new clause provid-
ing for forfeiture in case of a further
breach of the covenant as to the sales
of rice or of any other covenant, and
that upon a modified copy of the lease,
containing such new clause being pro-
duced and explained to respondent, re-
spondent executed the same, and pro-
missed to produce later his original
counterpart of the same lease for the
like modification and execution. More
over, the fact remains. uncontradict-
ed and unexplained, that at the trial
OF the action for damages brought by
this respondent against the complain
ant. the respondent himself admitted
nese characters to the lease of Sep
TENDER II, 1894, was his signature, al
though this admission was followed
later in the day, first by denial of the
fact by the same witness, and, second
ly, by the statement by him that he
could not swear whether 1t was his
signature or not. At the trial of this
suit, the respondent denied absolute
~ the execution of the modified copy
CT re lease and the agreement to eX-
cCute the other counterpart; in short
he denies having any knowledge at
all of the translation. The defense on
the facts Is that the modification Is a
forgery.
The question is one of the credibil-
ity of witnesses. From the evidence
| believe and find that the respondent
did execute the one counterpart of the
modified copy of the lease and did
agree to produce his original of July
/. 1894, for a like amendment and exc
cution. | further find from the evil
dence that the complainant. relying
upon respondents said agreement, per-
formed its part thereof, to wit, made
advances of goods and money to re-
spondent and abstained from seeking
any remedy at law for the breaches OF
| covenant committed by the respond.
| ent, In my opinion, complainant IL
entitled to the specific performance by
respondent of his agreement to pro.
duce his original lease of July /, 1894
for modification and to execute II In
It's modified form.
Decree accordingly,