The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-12-20
E. c. GREENwELL t. NJ. G. SILVA.
OPINION BY THE COURT. BY PERRY. j.

This is action brought District Court Of North
Kona Hawaii, under the statute, summary possession
OF certain lands situate North Kona After proceed
ings which need be here detailed the District Court
rendered Judgment for the plaintiff from which Judgment the
defendant appealed the Circuit Judge Of the Third Circuit
Chambers The latter court, trial
in favor of the plaintiff for possession of the property claimed
The defendant appeals this Court points of law OF
these third concerning rulings as adm
sion exclusion Of evidence have been referred argu
and must be deemed to have been abdoned the first
that the court erred in oveung defendants motion, made at
the close of plaintiffs for Judgment of dismissal based
the ground that plaintiff had failed prove her case and
the fourth fifth and sixth present the question of whether or
not there Is sufficient evidence to sustain the findings and ud
Judge existence between
the parties of the relation of landlord and the land
mentioned the declarations admitted by the defendant
The lease, which offered and received evidence contains
by the lessee, for himself and his permitted assigns
to pay all taxes to clear said lands OF antana IN parts suitable
for cultivation and paurge and also make suffer
any waste of the said premises and expressed to be upon the
condition that in of breach of of the be
observed the part of the said lessee the said lessor
his heirs assigns may without any notice
demand upon premises hereby demsed and there
upon determine the hereby created and thereupon eXp
and the said lessee and those claiming under him and
their effects The plaintiff alleged in his declaration, and the
Circuit Judge in his decision found that the defendant had
committed breach of each of these three covenants.
On the question of whether not the defendant had com
med breach of the pay all evidence
adduced on both sides some tending TO support that allegation
and tending dsrove IT, There clearly sufficient
evidence however support the finding that the covenant had
been complied with Two of the plaintiff of them
her agent in the of this lease and also in other matters
of business testified that plaintiff had paid the and that
the defendant had, after demand therefor refused and failed
pay them; and the defendant himself stated his direct
that he had refused pay the when OF
plaintiffs son. made demand same although ne adds
that for the refusal because he plaintiffs
the collector. Counsel for the defendant
this Court that if breach Of this covenant was
committed waived by the plaintiff; but find ev
dencc establishing the alleged fact of waiver
The motion for Judgment of dismissal, assuming that by
this WAS intended motion noneut properly denied.
Plaintiff had introduced evidence sufficient constitute nd
facic showing OF non-Iaymeut of taxes
IN view Of the conclusion thus reached sustaining the finding
nou-pavncnt of it obvious that the Judgment
appealed be affirmed 1t unnecessary t." upon
the -uccncy of the evidence with reference the finding OF
breach the clear said lands Of anma and not
TO 1t may be added that there may bc question:,
one raised argued by counse9 to whether the cove
nn they viii said lands OF lanana parts suitable
cultivation and pasturaec Is to e construed requiring
such clearing within reasonable time which to he the
upon which the plaintiff and the below proceeded
merely any time prior the end Of the term d" the lease
For the reasons stated, the appeal dismissed
smith 4 Parsons for plaintiff.
L. " Tirdx and {. &. Bifjug for defendant.