The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1901-05-10
DECISION
RENDERED
vs.. Turner
Case in the Su-
prene Court.

Chief Justice Frear, Justice Gal.
bar, in place of Justice Perry disquali-
fed, constituted the Supreme Court for
the hearing of the case of C. ]. Fishel
vs.. George A. Turner. an appeal from
the circuit judge of the First Circuit.
1t is suit in equity for specific per-
formance of an agreement to convey
certain lands situated at Olaa, in the
Island of Hawaii The case was sub
mitted Decembes n last, and decid.l
May 8.
The Chief Justice renders the opin-
ion of the court, Mr.. Bigelow concur
ring. Justice Galbraith files a dissent
ing opinion. The majority opinion af-
firms the decree appealed from, or
dering specific performance.
The transaction upon which the suit
was based is described in the following
paragraph from the opinion of the
court:
THE plaintiff proved that in the ear
ly part of November, 1897, at Hilo, Ha-
wall, the plaintiff agreed to purchase
of the defendant, and the defendant to
sell to the plaintiff for $1,000, plus SO
per acre. lots 1856, 356 and 357, in the
Olaa Coffee Reservation. the convey
ance to be made upon the defendants
obtaining a deed or patent of the land
from the government. The defendant
had not then applied for the land, but
as he had at that time only sixty
acres, or more accurately, $500 acres,
he was entitled under the law, to ap-
ply for l40 additional, or more accu-
rately, l4U. "a, the area OF the lots in
question, The parties seem to have
spoken of the tracts in round numbers,
as the TO and 140-acre tracts, respect
lively. The defendant afterwards ap-
piled for the land, and in due time OBJ
tanned "A patent therefor. The plaintiff
made payments from time to time on
account of the purchase price, as re-
quested by the defendant, until he had
paid Sl.1SS "a, and finally, when the
defendant had obtained the patent,
rendered him the balance and asked
for the deed. This, the defendant re-
fused to give because the plaintiff
would not assume or guarantee GER
tain debt owing by the defendants
wife to certain creditors in San Fran
cisco, a matter wholly disconnected
from the land transaction
What the dispute was about is
SHOWN IN the IolloWlnB WOius. i ne
agreement as above set forth was
proved by undisputed evidence. The
defendant introduced no evidence. He
relied entirely upon the assumed ina
bility OF the plaintiff 90 show COM
plianee with the statute OF frauds. Un-
der our statutes the consideration
need not be set forth In the writing.
There being no evidence that the con-
tract contained any other terms than
those set forth above, and the con-
sideratlon not being required to be set
forth In writing, the question Is
whether the terms above mentioned,
other than the consideration, were put
In writing and signed by the defen-
dant, The contract itself need not be
In writing. IL is sufficient " there ~
some memorandum or note OF IL In
writing This may be made after
ward II may be I'm the form OF one
or more receipts or letters"
A receipt from Turner the defen-
dant, 90 Fishei. the plaintiff, for t2st.3o
on account OF the purchase price OF
tho lots in question, and q letter from
the defendant 90 the PLAINTIFF. dlacuAs'
Ing the balance Of purchase price. are
quoted
me Law Of the case ls stated IN the