The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-03-07
DECISION
UPHELD.
c. 5. Desky Loses
in Supreme
Court.

THE appealed case of Nj. G. Silva !
against Charles S. Desky was de-
cided as in the lower court by the
Supreme bench yesterday. The
opinion as written by Judge Galbralth ,
is as follows:
The action was for damages for breach /
of contract 1t is alleged that the PA n
tiff agreed to purchase of the defendant
three certain lots at Puueo, H II, land
of Hawaii, for $500 each and that SLOW
of the purchase price was paid ut the
time Of entering into said cont act ana
at the same time the defendant eXecuteu
and delivered to the plaintiff certain
instrument in writing. in words and ng- /
ures following, to wit:
$3.50 Honolulu, Aug. ., 1896.
Received from NJ G. Silva the sum O.
$50 being a preliminary payment tC
secure lots II, u, Ii, in block OF tue
land known as Puueo, situated IN Hiio'
Hawaii, H. l., and lately sold by the
Hilo Sugar Company to Bruce War,ns
and Company, the purchase price LOT
said three lots being $1,000 This deposit
binds the vendors only as follows: Pos
session of land not to be given until the
same is surveyed, which shall not De
later than March !, 1897, when agree
ment of sale will be executed Tor pai-
ance of purchase money of $1,000 payaDie
in six and twelve months, with per
cent interest from March /, 1897. to be
paid as follows: The further sum OF Szoo
on delivery of said agreement OF sale;
$500 on August /, 1897, and the balance OF
$500 on February l, 1888, when a Warrah-
ty deed for the above described lois
will be given Vendors do not bind
themselves to the size of lots which are
shown on a map of said land now IN
the offices of Bruce Warning and Conlpa-
ny in Honolulu and F. M. Wakeheid. III
Hilo. BRUCE WAXING * CO.
That without notice to the plaintiff or
any attempt to perform the contract
with him, defendant sod said i3ts 70
other parties for $500 each, or for $500
more than the price plaintlH was 10
| pay for them.
| The defendant in his answer pleads the
general issue, and gives nottce that ne
intends to rely on the defense of re
lease" trial was had to jury ana
a verdict returned for the plu:ntiff for
1885, this being for the $50 pad, and fsr
the $500, the. advance in the price at
which the lots were sold and interest
thereon from commencement OF SUIT 10
date of judgment at the rate of per
cent per annum.
The defendant comes up on exceptions.
The first is to the following question
asked of the plaintiff: State whether
or not you agreed to purchase from Mr..
Desky certain lots of land in Puuec. Hi
Ilo?": and the second is to the over 'nllns
defendants objection to the admission III
evidence of the written instrument above
quoted The question was a proper one
and the writing was competent and rel
evapt and properly admitted.
At the close of plaintiffs case the de-
PENDANT moved for a non-suit on the
ground that the evidence showed that
the contract entered into between the
parties was unilateral and that lie
lplaintiff was not bound by 1t and has
done nothing since the making of the
contract by which he became bound
thereby" This motion was denied anc
exception taken.
We think that the motion was proper
ly denied. The question presented by the
motion was not as suggested by counse
for defendant whether the contract mad'
between the plaintiff and defendant wa!
bilateral or unilateral, but was 1t sucl
contract, or the memorandum, thereof
as bound the defendant, the part!
sought to be charged.
1t is further objected that at the clos
of the evidence the Court instructed tn
jury in part as follows: 81 charge yo'
that you must find the following
facts: That on August 25. 1885, the de
PENDANT agreed to sell to the plaintiff
three lots in question for the price o
81, 200 upon the terms as to payment stat
ed in the instrument on file; that a
that time plaintiff paid Desky $50 on &C
count of the purchase price Of the lot
and therefore have said it is an agree
ment of sale and not an option that wa
given in August, 1885, by the defendar
to the -'aintiff; further that the defend
ant has committed a breach of the agree
ment unless you find that there was
surrender or release by the plaintiff
This instruction it seems correctly cor
strues the writing as understood by tn
4 parties at the time of its execution
Both plaintiff and defendant testify the
the defendant agreed to sell the lots an
+ plaintiff agreed to buy them at the prio
and on terms set out in the writin
q signed by the defendant. Although tn
s. latter part OF the instruction is not
full statement of the law. 1t possibly
h as fun statement as was requ red VI
q der the issue presented by the pleading
q and the evidence.
The instruction as to the measure
q damages was correct statement of til
law as applied to this case.
While the instructions requested b
q the defendant and refused by the Cou,
were, we think, in the main, correct
q abstract propositions Of Jaw: they wei
y not in harmony with the issue or II
s. evidence and were properly refused.
3 The Court in constrNing the WRITE
q instrument properly bod that tho SIS
q receipt of which Is ackncwle ged Their
q in, was not paid for he pr v:lege of sc,
q ercising the right to accept the 10
q when offered at a later date. hut was
y part performance on his part and
y payment on the purchase pr'ce.
q Whether this writing, signed only l
8 the defendant, was a unilatel al or /
a. lateral contract does not seem %
important nor material to determi1
: since 1t is signed by the party soua
to be charged, and that is sufficient f
this controversy under the rule q
roInced by the Supreme 30 TT or q
Republic of Hawai- n f:1, - ] 4.
Co. VS.. Hawaiian Electric Co., Ha
4S5. The same rule was announced a
followed by the Supreme Court of Ca
fornia in an action on a written instr
case. Dennis VS.. Strassburger, 26 Pc
Rep. 1910.
1t seems that the question, whether u
der the contract as a condition pre-
dent to bringing his action, the duty "
not incumbent on plaintiff to tender /
$3.50, due on the completion of surv
and demand the further agreement
n sale mentioned in the writing of A
gust %, 1896, is answered by the asst
ton that the defendant notified II
that the lots would not be surveyed
March ! and that he would be Motif
when they were surveyed and tina: I
next notice he had from the defe1d
was that the lots had been sold to OIL
- parties and that as the defendant II