The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-05-09
DECISION
RENDERED
FisheI VS.. Turner
Case in the SUI
preme Court.
LOWER COURT
DECREE AFFIRMED
Justice GaIbraith Files a Dissent
ing Opinion With the
Decision.

Chief Justice Frear, Justice Gal
braith and H. A. Bigelow, Esq, of the
bar, in place of Justice Perry, d1squali-
| fed, constituted the Supreme Court for
the hearing of the case of c. j. Fishel
VS.. George A. Turner, an appeal from
the circuit judge of the First Circuit.
| 1t is a suit in equity for specific per-
| Torrance of an agreement to convey
certain lands situated at Olaa, in the
Island of Hawaii. The case was sub
mitted December az last, and decia5
| May s.
The Chief Justice renders the opin-
| ion of the court, Mr.. Bigelow concur
ring Justice Galbraith files 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:
| 1.-The plaintiff proved that in the ear
| ly part of November, 1897, at Hilo, Ha-
| waii, the plaintiff agreed to purchase
of the defendant, and the defendant to
sell to the plaintiff for $1,000, plus So
per acre, lots 355, $50 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 APP
| ply for 40 additional, or more accu
rately, 40. "a, the area of the lots in
question. The parties seem to have
| spoken of the tracts in round numbers,
| as the 60 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 $1,13S ga, 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 a GER
tain debt owing by the defendants
wife to certain creditors in San Fran
cisco, matter wholly disconnected
from the land transaction"
What the dispute was about is
shown in the following words: THE
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 to show COM
pliance with the statute of frauds. I'm
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-
sideration not being required to be set
s., . a..
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, 1t is sufficient if there is
some memorandum or note of it in
writing. This may be made after
ward. 1t may be in the form of one
or more receipts or letters"
a receipt from Turner the defen-
dant to Fishel, the plaintiff, for S294.30
on account of the purchase price of
the lots in question, and letter from
the defendant to the plaintiff, discuss
ing the balance of purchase price, are
quoted.
The law of the case is stated in the
following llabus of opinion:
The circuit judge of Que circuit may
enforce specific performance of a con-
tract to convey land situated in anoth-
er circuit.
1.-The memorandum or note required
by the statute of frauds to be in writ
| ing, may be in the form of one or
more receipts or letters.
Parole evidence is admissible to To-
cate the land referred to in the writ
| ten memorandum of the contract
when the terms of contract with
| in the statute of frauds are set forth
in the several writings, all of which
are signed by the party to be charged,
such writings need not refer to each
other. 1t is sufficient if they all refer
to the same transaction, as shown by
internal evidence and condolences
| through inspection and comparison.
when the evidence shows COM
plete contract, all the proved terms OF
which are in writing, signed by the
| party to be charged, it is not to be
presumed that there were other terms
not found in the writing.
"A contract to convey may be en-
forced, though the form Of the deed
though the wife of the vendor is not
bound to release her inchoate right of
DOVER"
Justice Galbraith, in dissenting from
his colleagues, takes it that the men,
| bers of the court practically agree as
to the law governing this case, and
that the principal point of difference is
| as to the proper application of the law
to the facts"
His opening remarks are as follows:
Il am not able to assent to the doc
trine announced in the majority opin-
ion, particularly that concerning the
principal and last proposition discuss
ed, /. e.. the suff1ciency of the mem
oranda recited to take the agreement
out of the operation of the statute of
! frauds. This opinion forcibly illus
! trates the simplicity and effectiveness
| of system of inference. reference
] and comparison in revivifying and
terminating an uncertain and indefi-
mite contract, and also shows how the
| operation of the system results in set
ting aside and annulling statute by a
1 judicial decision"
| The dissenting justice reviews at
considerable length the evidence. for
the purpose of upholding his view al
ready stated to the effect that an
agreement was not proved, sufficiently
definite and certain to be the subject
of decree of specific performance in
court of equity. He says, ut IS very
difficult to understand how the court