Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1902-01-03
(ROSSMANS WIN OUT
MORTGAGE TO HACKFELDS
NOT RIPE TO F0RECL0SE
Decree Of Judge Little DiSmiSSing
is Affirmed - New Trial
Ordered in mother
Case

the sustaining of his decree, the case
being that of II. Hackfeld & Co, Ltd,
VS.. J. E. Gresham and NJ. E. Gross
man. The unanimous opinion of the
Supreme Court to that effect is written
by Justice Galbraith.
On May L. 1897, the Grossmans were
indebted to Paul Isenberg and J. f.
Hackfeld for advances amounting to
$3.50 In consideration of this debt
and the agreement of HacKfeld 4 Co.
TO make further advances as needed,
during ten years ensuing from that
date, not exceeding $3i, 400. the defen-
dants executed a mortgage on their ,
coffee estate of 200 acres at Olaa. Ha-
wall, it being provided that the mort |
gage should be continuing security |
for all advances made during such ten
years in any sum not to exceed 1876, $50. |.
This mortgage was afterward assigned I.
TO II. Hackfeld & Co, Ltd.
The mortgagors covenanted that they
would keep up the cultivation of cof-
fee upon the land to the satisfaction Of
the mortgages. and If breach were
made in any Of the covenants of the
mortgage then the Indebtedness should
at once become wholly due and pay.
able
Advances we're made under the mort
gage until March /, 1901, when the in
debtedness amounted in the aggregate
to S20.OSi.7G. At that date the Hack
field corporation refused to make any
Ga 81 .
and by resolution of the directors de.
clared that It was not satisfied with
the cultivation Of coffee by the defen-
dants and ratified the action of its
president, Paul Isenberg, "in proceed
ing to foreclose said mortgage by rea-
son of the breach of the covenant to
keep up the cultivation Of the coffee
growing upon said land to the salts
faction of the mortgage, and also for
breach of the covenants contained in
the agreements referred to in said
mortgage relating to the keeping OF
proper books of account and to the
purchase of supplies from II. Hackfeld
& Co. and II. Hackfeld & Co., Limited"
On March II, 1901, the plaintiff filed
its bill to foreclOse the mortgage. al
leglng breach of conditions. The de.
| PENDANTS answered denying the breach
of the covenants and alleging that tho
plaintiff was not bona fide and in good
| faith dissatisfied with their cultiva.
ton of the coffee, but that its dissatis.
faction was with the venture as q
whole and with coffee culture as a
profitable investment At the time tho
| plaintiff abandoned all of the alleged
breaches except that in relation to the
cultivation of coffee.
The Judge found for the defendants
and entered a decree Diminishing the
bill From that decree the plaintiff APP
| pealed. The appellant contended be
fore the Supreme Court that the law
Of the case was settled in this jurisdiC-
ton as announced in Rawlins VS.. Soap
Works and Porter VS.. Hawaiian Pork
Packing Co. Distinctions are found.
however, by the Supreme Court and,
after reasoning at length on contracts,
1t makes the one leading question sub
mitted to the Judge to have been
whether or not the appellant was, as "A
matter of fact, in good faith dissatisfied
with the defendants cultivation of the
coffee. He decided In the negative and
his decision Is upheld by the Supreme
Court, the syllabus of whose opinion
shows the following points of law de.
termined:
"A mortgage with covenant on the
part of the mortgagors to cultivate the
coffee now or hereafter growing on
the mortgaged premises to the salts,
faction Of the MORTGAGE and with fur
ther covenant that upon a breach In
the performance or observance OF any
one of the covenants contained there
in, the Indebtedness thereby secured
should thereupon become wholly due
and payable gives to the mortgageC
an option to declare forfeiture when
ever he may bona fide become dissatis
fed with the cultivation of the coffee
1.-THE finding of the trial Judge tina
the mortgage was not dissatisfied will
the cultivation Of the coffee is sus
tanned and the decree Diminishing tn,
bill is affirmed"
Smith & Parsons and Kinney, Bal
lou & McClanahan for plaintiff; Wis
& Nickeus, Geo. A. Davis and Ceci
Brown for defendants.
Justice Galbraith Is also author of
unanimous opinion in 2. Paakk VS.
B. Owaanui. exceptions from tn
Fourth Circuit Court. It was an &C
tlon in ejectment, wherein the jury re
turned a verdict for the defendant Tn,
plaintiff relied on but one of severa
exceptions in appealing, and this wa
to ruling of the trial court in sus
tanning an objection to decd offere,
in evidence by the plaintiff. II 1
found that the deed was competent an,
relative testimony, being one of tn
links in the chain of title set out by tn
plaintiff. The exclusion of this dee
would have been harmless error II IN
court had instructed the jury that tn
plaintiff had established a paper It'll
to the land without that particula
document.
I'VE cannot say that the exclusion G
this deed was harmless error" tn
opinion concludes, land must order
new trial. The exceptions are sus
tanned"
J. A. Magoon and T. |. Dillon ia
plaintiff; Smith g. Parsons for defer