The Hawaiian gazette., 1901-03-08
DECISION
UPHELD.

against Charles :. Desky was de-
II cded as In the lower court by the
Supreme bench yesterday. The
opinion as written by Judge Galbraith
IL as follows:
Tho action was for damages fJr breach
OF contract, 1t Is alleged taut the pan
til agreed to purchase o. the defendant
three certain los at PuLeo, ii l.. land
Of HaWau, for $500 each ana that $40
Of the purchase price WAS paiu AZ the
me Of c.ttT.hg tn.U tuiu cat nc, and
at IN. same me the defendant executed
ANA dcLvttod t. the pa uli.i Il certain
IL uum n, " ling, n w.tds und rg-
ures following. to wit:
SO. Homo uiu. aug. =. 1854
Received rom NJ G. slNa the sam 9,
$50 Icing a preliminary p.yHea. to
s.,e.v $50 al, I-, 49, =. ..~~.. "a t"e
lauu knuMn as uueu, tu-t,u lao,
II""a,., IL. 1" .unu ia'o.y s-.u ~ ,he
LID .;~S~. -ihE..ny - b.u-G va iiS
alu VA. t"ig, Ia, pa CIL.> t.i.S Tor
s,.lu ,in,, IO,l be ny 500. an . deio~t
blus ,.v Nonuots uhl. 49, io..Jh=. fos-
,ss.un u ll.,u no, u liz sINen uni. the
same - sa.NCSeu, Mnl2h sinai not he
later THAI March /, lo.,, wnen agree
urnt OF sale VIA he executed iar bal
anCc OF purchase money oil $1,000 payable
in six and twelve months. win per
cent interest from March 1. 1897. to be
paid as follows: The further sum OF $3.50
ON del very of said agreement of sale;
$500 on August /, 1897. and the balance Of
$500 on February l. 1898, when a warran-
ty deed for the above described lols
will be given. Vendors do not bind
themselves to the size of lots which are
shown on n map of said land now In
the offices of Bruce Warning and Cnmpa-
ny in Honolulu and f. M. Wakefield. in
Hilo BRUCE WARING x co.
That without notice to the p!.tin:in or
any attempt to perform the contract
with him, defendant sod sad Its to
other parties for $500 each, for $500
more than the price plaintin was to
pay for them.
Ihe defendant in his answer pleads the
general issue, and gives notics that he
Intends to rely on the defense of re
lease" A trial was had to jury AMI
verdict returned tor the Plu.ntilt for
SiS6, this bcing Tor the Sl5J pad and fer
the 5000, the advance III the price at
which the lots We're sold ana intereSt
tnor,on ON commence meut II suit to
date of judgment AT the rate of 6 per
cent per annum.
1he ulte..Gan. comes up on exceptions
Ihc Inst l., t. The following question
asked OF the plaintiff: STAT, Wi,c,hef
or not you agreed to purchase /. m Mr.
Bcsky CeIta u los OF lald "a uucv. Hi
lu!' a.u II. sulCnu 10 - Ihe o.e' u!.ns
cNtCe &c ul III wri,ten stru.n M. IL we
quct,d. The qu, stlo" Wa p ore. one
ana The Wi Ia was CCmp, t., Luu ell
eNunt and properly admiIt,d
1T Il e Close Of y amt II case the de
fcLoant moved for "A nun-.ut IN tho
ground that tie ev de. &C sh weu that
tIe contract catered NC be,weeL tbs
parties YVES unlldtCrai ard that he
plaintiff vas rot bound hy It ana has
dine Moth ng 5 nee the max M OF he
contract ly which he lee. me bound
thereby" ~ is m ton was DIN ed and
except taken.
We think that the mott n was proper
ly denied. Thu question prese ted by the
mot on was not as suggested by counsel
for defendant. whether the cont act made
between the pa nt!f ana Defendant was
blateral or unilate al, but was 1t such
"a contract or the memorandum thereof.
as bound the defendant, the party
sought to be charged.
1t Is further objected that at the close
OF the evidence the Court instructed the
jury in part as follows: 81 charge you
that you must find the following as
facts: That on August 25. 1896, tho de-
PENDANT agreed to sell to tho pa'ntir
three lots in question for the price OF
$1,000 upon the terms as to payment stat
ed In the instrument on file; that at
that time plaintiff paid Desky $50 on &C
count of the purchase price of the lots
L
ment of sale and not an option that was
given in August, 1896. by the defendant
to the plaintiff further, that the defend
ant has committed n breach OF the agree
ment unless you find that there was a
surrender or release by the plaintiff"
This instruction 1t seems correctly con-
strues the writing as understood by the
parties at the time of its execution.
Both plaintiff and defendant test fy that
the defendant agreed to sell the lots and
plaintiff agreed to buy them at the price
and on terms set out In the writing
signed by the defendant. Although the
latter part OF the instruction is not a
full statement of the law, II possibly IL
as full statement as was roqu red I'M
der the issue presented by the pleadlnga
and the evidence
The instruction as to the measure OF
damages was a correct statement OF the
law as applied TO this case
While the instructions requested by
the defendant and refused by the Court
were. we think. in the main. correct as
abstract propos tons - 'aw; they were
not In harmony with the Issue or the
ev conce and Were properly refused
The Court in cnnstruing the written
instrument rrrr'rlv ho'd that tho $50.
receipt N wh ch is n'rnowlorred there
In, WINS not ppld for he pr VI re ~ Eek
er"is'rr tho riWrt 10 nco"ut' tho iors
when oN"""d ~ later dtt" int "1s a
rhri performance o. tle pnrt and A
payment on tie purchase n ice.
Whefhor his writi.p signed only by
the defendant was q uni tom or NJ
lateral contract does not -rru, "a he
inuor'ont nov mptrr'pi 10 fore n'lur.
since Z H. slprrd hv the rartv sought
10 %" CHARGED nnd ihp is uW tent roi
THIS urrrv"rsv und,r nr rulr mn
ro1r,od Wv the supreme .o,.r NJ ne
llull.r NJ '.uu"in '.r n.
60. '9 Hawaiian Fr0rr. 40 20 Uaw.