The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-01-03

WINS AGAIN
|TheSupremeCourt
Rules in Coffee
Case.
DISSATISFACTION
NOT PROVEN
Hackfsld & Co. Cannot Recover
Money Paid for Promoting
Coffee Cultivation.

In a lengthy decision fled yesterday
the Supreme Court sustained the de-
cision of Judge Little by which ii.
Hackfeld & Co. was estopped from
collecting monies advanced to j. E.
Grossman and NJ. Z. Grossman for the
| cultivation of coffee on Hawaii. The
decision, which is a lengthy one. was
written by Justice Galbraith. and
! though the Supreme Court holds that
the plaintiff had a right to foreclose II
dissatisfied with the way the plantation
was conducted, yet the evidence falieo
to prove that the firm of Hackfeid q
| Co. was dissatisfied.
| In it's statement of the case the
court says:
| The principal facts OF this cause are as
! follows: On the 4th day OF May, 1897.
! the defendants were indebted to Paui
! Iseuber, and J. e Hackfeld, partners as
! III. Hackfeld G. Company, for advance
made in the sum of s1,75O. In considera-
/ ton of this Indebtedness and the agree
ment of Hackfeld & Co. to make furthef
advances as needed, during the pefioo
! of ten years next ensuing from said Date,
| in an amount not exceeding the sum OF
! SCI 400. the defendants executed a mort
gage on their coffee estate of 200 acres
| located at Olaa, District of Puma, Island
/ of Hawaii 1t was provided that the
| mortgage should be continuing security
| for all advances made during said ten
years in any sum not to exceed SS6150.
| This mortgage was afterwards assigned
| to the present owner, II. Hackfeld & Co.
Limited. The mortgage contained inter
| ala the following covenant, i. e.: "And
| the said mortgagors, for themselves,
| their heirs and assigns, hereby covenant
and agree to and with the said mortga-
gees, their heirs and assigns, that they
will keep up the cultivation of coffee no.c
or hereafter growing upon said land to
the satisfaction of the said mortgages,
their heirs, executors, administrators or
assigns" etc, and further provided that
| "if breach be made in the performance
| or observance of any of the covenants
| or agreements herein contained
| then said Indebtedness shall at once be-
| come wholly due and payable" etc. Ad-
vances We're made under the mortgage
| from this date until March 1st, 1901. at
which time the Indebtedness secured by
the mortgage amounted in the aggregate
to $50, oS4.7S.
On said March LIST, the assignee of the
mortgages refused to make any further
advances under the mortgage and by res
olution of its board of directors declared
| that 1t was not satisfied with the cultiva-
| ton of coffee by the defendants and rat
flied the action of its president, Paul Is
enberg, lin proceeding to foreclose said
mort gage by reason of the breach OF the
covenant to keep up the cultivation of
the coffee growing upon said land to The
satisfaction of the mortgage, md also
for breach of the covenants contained IN
the agreement referred to in said mort
gage relating to the keeping OF proper
books of accounts and to the purchase Of
supplies from II. Hackfeld & Co. and II.
fll6 p ivraTA xa.lf
On March 18th, 1901, the present suit
was filed and upon trial the court
found in favor of the defendant. The
Supreme Court holds that the conten-
ton of plaintiffs counsel in some parts
was correct. but that the cases cited
did not apply to the one at issue.
In the syllabus the court says:
\ mortgage with covenant on the part
OF the mortgagors to cultivate the coffee
now or hereafter growing on the mort
gagged premises ito the satisfaction OF
the mortgage and with further covenant
that upon breach in the performance
or observance" of any one of the cove
nants contained herein, the Indebtedness
thereby secured should thereupon be
come wholly due and payable" gives TO
the MORTGAGE an option to declare a
forfeiture whenever he may bona 4-de
become dissatisfied with the cultivation
of the coffee.
The finding of the trial Judge that the
mortgage was not dissatisfied with the
cultivation of the coffee is sustained. ard
'he decree Diminishing the bill is affirmed.
In concluding its finding the court
says that the evidence sustains the
finding of the lower court that the dis
satisfaction of the plaintiff with de-
PENDANTS coffee growing was not bona
n q and t1sA
been offered to plaintiffs as how to i'm
prove their methods of cultivation.
The law placed on the plaintiff the
burden of proof to establish by q pre-
ponderance of evidence that il was
bona fide dissatisfied with the cultiva-
ton Of coffee by the defendants In
this 1t failed. We find that the evil
dence was ample 10 sustain the finding
of the trial Judge. The decree appeal
ed from is affirmed"
Smith & Parsons and Kinney, Ballou
and McClanahan for plaintiffs. Wise
q Nickeus and Cecil Brown for de-
PENDANTS.
JUDGE LITTLE REVERSED.
A decision was also given reversing
the Fourth Circuit Court in the case of
T. Paakiki V. b. Owaanui, an eject
ment suit wherein a verdict was given
by jury for the defendant. The re-
versal is based on the refusal of the
trial judge to allow the admission Of
evidence as to a deed offered by plain
till, and the Supreme Court holds that
the jury should have been instructed
TO find for plaintiff, unless adverse
possession was proven. The exceptions
are sustained and n new trial ordered