The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1900-01-06

Judges and held that ought be compelled do
VI though he might price high render accept
impossible. present coud not be TINS
difficulty, for the defendant could not drive more cattle 'nan
= there price per head already fixed Perhaps
on the whole but decide, if the original defendant
living he might properly be compelled to make the dfV
though must this altogether clear from
the authorities discussed this phase Of the at
4 LENGTH because of the throws upon the further ques
ton whether the may be compelled make the
tends show how courts of equity regard cases OF this
on b the parties and that except under unusual circumstances
they regard agreed upon by the parties for the deter
Summation be paid of the of the contract
the present clear that the could not substitute
master party named in the contract to make the drive
a and we believe could consistently with the terms OF
~ The contract compel the administrator to make the drive
m The expressly provided that The drive should be made
In the clause it provided that the count
should by the parties their authorized agents. The
1dve be made by temande not by ternande or ms
authorized agent thus tending show that the parties regarded
m this personal privilege his part not indeed that he
bound to make the drive personally but that 1t was his PRIV
an ege to supervise it. This provision inserted, for Paris
alone order that the labor and expense of the drive
might not be borne by him. especially benefit
re Of Fernandez order the number Of cattle be paid for
might be large possible owing his familiarity with the
cattle and the country which they roamed and his interest in
having complete possible The parties evidently
hi contracted on assumption that Fernandes live long
pr enough the drive Fenands contemplated drive by
himself alone The provision that the drive should be made by
him matter Of form intended merely to settle
who should the labor and bear the expense 1t
Nv with reference its effect upon the total to be paid
for An administrator generally bound to perform
of his dcccent relating to personal property even
though not expressly named except where the be
formed are intended be personal shown either from their
nature by intention Of the parties manifested by the entire
contract surrounding circumstances and such
cases the administrator often liable in damages for breaches
made before the death of the party though not for breaches
- occurring thereafter Under all the circumstances OF the present
ease we believe that the substance of the contract that
m Fernand should have the privilege of making the drive himself
n personally In tar r. MdckIcr SUPRA the court though 1t
dismissed the bill the ground that could not compel the
appointment of vauer substitute master for the valuer
held that the appointment the vauer might be made by
ccuors administrators assigns but it held for the reason
- that these were expressly named In Morgan HumdR DeU
A. W. e. c. d. the be paid to be settled by arbitration
M or Jury the parties should choose Ihs party ded
before making the choice The court apparently thought that
his executor could make the choice although no DOUBT
would not have compelled the original party do had he been
BIZ alive In Blmd BTcargh, II Yes 232 the value OF Ger
tain lands was to fixed within certain time by two arbtrao
a. named i'm the contract They made award within the time
prescribed until four days after the death OF one OF the
parties The words hcr executors administrators and assigns
occurred almost uniformly throughout the contract IN connec
ton with the names of both parties but in the passage by winch
m the parties bound themselves they described as parties 10
these presents and the be delivered to leach par
" II was held from the the be performed and
the language of the that there agreement the
= terms of which ascerancd during the lives OF the parties
y or which would bind those who entitled after their Deaths
md that the effect Of the of the words heirs, etc. was
j merely bind those persons to carry out the agreement aer
n the deaths of the parties in the agreement snoud DC co
peed by the delivery of the award see Dh"S
a ~ CdIqhdn's AdnUS, 10 Pa. st. 227.
The decree appealed from IS reversed and the bill dismissed.
y Kinney BaIlou oe HcCLouGhGn for the plaintiff
n Maqoou C SHliman for the defendant.