The Honolulu republican. [volume] (Honolulu, T.H.) 1900-1902, 1901-05-09
SUPREME COURT
MAJORITY DECISION
AN EQUITY CASE RELATIVE TO
AN oLAA LAND
OPERATION.
Chief Justice Frezr and Mr.. 6igsIow
Sustain the First Circuit Court
Justice eaIbraith Renders Dis
sensins Opinion.


bar, in place of Justice Perry. dlsquall-
fed. constituted the Supreme Court
for the hearing of the case of C. J.
Fishel VS.. George A Turner, an APP
peal from the Circuit Judge OF the
First Circuit 1t is suit in equity for
specific performance of an agreement
TO convey certain lands situated at
Olaa. in the Island of Hawaii The
case was submitted December 81 last
and decided 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:
The plaintiff proved that in the
early part of November. 1897, at Hilo.
Hawaii. the plaintiff agreed to pur-
chase of the defendant and the de-
PENDANT to sell TO the plaintiff for $1,000
plus So per acre, Lots 355. $50 and 357
in the Olaa Coffee Reservation, the
conveyance to be made upon the de
PENDANTS obtaining 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 60 acres. or more accurately 59.06
acres, he was entitled under the law
to apply for 40 additional, or more
accurately 1904, the area of the lots
in question. The parties seem to have
spoken of the tracts in round numbers
as the so and 40 acre tracts, respec-
lively The defendant afterwards ap-
piled for the land and in due time
obtained patent therefor. The
plaintiff made payments from time to
time on account of the purchase price
as requested by the defendant until
he had paid s113S64 and finally, when
the defendant had obtained the pat
ent, rendered him the balance and
asked for the deed. This the defend
ant refused to give because the plain
tiff would not assume or guarantee
a certain debt owing by the defend
ants wife to certain creditors in San
Francisco, matter wholly discon-
nected from the land transaction.
What the dispute was in equity is
shown in the following words: "The
agreement as above set forth was prov
ed by undisputed evidence The de-
PENDANT introduced no evidence He
relied entirely on the assumed inabi-
lily of the plaintiff to show a compli-
ance with the statute of frauds Un
der our statute the consideration need
not be set forth in the writing. There
being no evidence that the contract
contained any other terms than those
set forth above and the consideration
not being required to be set
forth in writing. the question is whe-
Their the terms above mentioned other
than the consideration were put in
writing and signed by the defendant.
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 defend
ant. to Fishel, the plaintiff. for s294.30
on account of the purchase price of
the lots in question. and a.letter from
the defendant TO the plaintiff discuss
ing the balance of purchase price are
quoted.
The law of tue case is stated in
the following syllabus of opinion:
"The Circuit Judge of one circuit
may enforce specific performance of
contract to convey land situated in
another circuit.
The memorandum or note requir-
ed by the statute of frauds to be in
writing may be in the FORM of one or
more receipts or letters.
"Parol evidence is admissible to
| locate the land referred to in the
written memorandum of the contract
When the terms of a contract with
| in the statute of frauds are set forth
in several writings all of which are
| signed by the party to be charged
such writings need not refer to each
other 1t is sufficient il they all refer
to the same transaction as shown by
| internal evidence and condolences
through inspection and comparison
When the evidence shows a com
| plete contract all the proved term:
/ of which are in wrILng 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 deet
is not specifically agreed upon. ant
though the VIE of the vendor is mo-
bound to release her inchoate right
of DOVER"
Justice Galbraith in dissenting from
his colleagues takes it that the mem
bers OF the court practically agree as
to the law governing this case an6
that the principal point of difference
is as to the proper application OF tbs
law 10 the facts"
His opening remarks are as fol
lows: Il am not able to assent tG
the doctrine announced in the mai
ority opinion. particularly that con
corning the principal and last PROPOSE
ton discussed. e. the suficiency Of
the memoranda recited to take tbs
agreement out of the operation of tht
statute of frauds This opinion for
eibly illustrates the simplicity and
effectiveness OF q system of infer
ence. reference and comparison In
reyivifying and terminating an IN
certain and indefinite contract and
/ also shows how the operation OF fhs
ss~sfs,r.. results IN cofffnr aside .rr