The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1902-07-11

PLEA IN BAR
Robinson Rules in
Case of Paris.
Masoon.

4 case which has had circuitous
route In the Hawaiian courts for about
five years, that ~ Paris We Magoon,
viii have 90 be- heard again. This is
an action for damages in the amount
OF $4,000 for breach Of contract, in
volving the delivery of ranch leases
and cattle by 4. Fernsndes now de-
ceased, to J. u. Paris.
The suit was Instituted. in 1895 in the
First Circuit and Judge Perry found
for the plaintiff. compelling the per-
Torrance of the contract relating to
the leases, but not as to the cattle.
Both sides appealed to the Supreme
Court, which held that the entire con-
tract was proper case for specific per-
formance and there could be no sepa-
ration of it's terms. The bill was dis
missed.
Fcrnandes died and another action
was brought against his heirs in the
Third Circuit, then transferred to the
Fourth Circuit, and later by stipula-
ton brought to the First Circuit Court.
a trial was had before Judge Humph
reys in June, but resulted in a mis-
trial. When the case was called up
again, Magoon as administrator OF the
Fernandes estate presented a plea in
bar. alleging that the decision of the
Supreme Court settled the matter. and
the question of damages should have
been considered at tia. time.
Judge Robinson, in overruling the
plea in bar yesterday, held that the
former adjudication did not cover the
claim for damages and II can be rails
ed again. The uoctrinc OF res adjudi-
cata, he says, will be extended only
to such matters as were relevant and
pertinent to the case and within the
pleadings of the former action"
The court holds that "In the former
adjudication relied upon as bar to
this action the only ultimate matter
adjudicated was the specific perform
ance of the contract under considera-
ton. The only other ultimate matter,
that of damages resulting from the al
legged breach of the contract, which
might have been adjudicated under
the prayer for general relief was not
in fact adjudicated. and it is not to be
10 regarded. 1t has been held infer
entially that a decree for specific per-
Torrance in equity does not preclude a
party from resorting to his remedy at
law for damages"
VERDICT FOR LANE.
Judge Humphreys yesterday directed
a verdict for defendant in the case of
Keoni Ahu Puuki VS.. Lot c. Lane. He
held that the property in question was
decided to the defendant and that the
piaintif signed the deed. He held in
effect that there was no showing that
plaintiff was entitled to anything at
the hands of Lane. The jury returned
verdict as instructed. Puuki sued for
$25OO for failure to support, alleging
that he had decided his property to
Lane with such condition.
WANTS HIS MONEY BACK.
Thomas Fitch yesterday filed a pc
tition for refund of the money ad-
vanceu by him to Kalua Kapukini,
spendthrift. The total amount asked
for is s436.50. being sums advanced for
subsistence and necessary expenses be-
tween September 20, 1901, and May 5,
1902, when she was out of Magoons
hands.
DEMURRER SUSTAINED.
The demurrer was sustained by Judge
Robinson yesterday in the case of j.
NJ. McChesney VS.. Waikiki Land a.
Loan Association and George H. Paris, .
treasurer The petitioner is given ten
days to amend his bill and the defend !
ants are allowed ten days to answer. !
The amended bill was filed yesterday
IL which McChesney alleges that Paris
Wrongfully retains $50, 900 received from
the McCully tract deal. 1t is said fur |
Their that Paris holds a majority of the !
stock and prevents meeting OF the
directors.
COURT NOTES.
The will of the late Frank b. Auer-
bach was filed for probate yesterday
He left stocks valued at $4,000, pledged
AS security for debt of $4,000. life in
surance of $4,000. and personal prop
erty worth $500. The widow and chill
dren are the heirs, and the widow
asked to be made eXecutrix. the Ha-
waiian Trust Co.. made so by the will, [.
renouncing its claim. |
Frank c. FaXon. j. S. Fox and N. r. !
Simonton have been appointed APP
praisers of the estate of George $ ,
Houghtailing.