Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1904-07-11
NEW TRIAL FIR
VOTERS SUIT

Exceptions are sustained and new
in Il. II. +. VOTERS VS.. +. II. Red.
ward, the Supreme Court so deciding
this forenoon, Associate Justice Hatch \
writing the opinion.
Action was to recover Sl.594S0 |
which plaintiff had paid on defendants
account to satisfy the terms of bond
10 a building committee of Hawaiian
Lodge No. to secure contract.
Default was made In the perform.
ance of the building contract and a
Judgment recovered against the de-
PENDANT Redward by the committee of
the lodge in the sum of s1.62312. De.
mand was thereupon made upon the
plaintiff, as surety upon said bond, for
the payment of said judgment. The
plaintiff made compromise and paid
the sum of 81 go in satisfaction of the
bond. This action was then brought
10y plaintiff for indemnity. Upon com.
ing on for trial the plaintiff having
shown that the bond in question was
lost, offered parole testimony as to the
contents of the bond. This was prop.
erly excluded when the offer was first
made plaintiff at that time not having
brought himself within the rule: plain.
tiff subsequently produced as witnesses
all of the surviving members OF the
building committee of the lodge. also
the secretary of the lodge, also Mr.. Ce.
ell Brown. the attorney who collected
the sum of 81 220 from the plaintiff OF.
behalf OF the lodge None of these
persons could give any light as to tho
whereabouts of the bond, although
each had been requested to search for
the same. Two members OF the com
mittee had died, and Mr.. Hipley, the
architect under whose supervision the
building was constructed and who at
one time is shown to have had posses.
sion of the bond. was not In the coun.
try at the time of the trial and no at.
tempt had been made by the plaintiff
30 obtain his testimony. The fact that
Mr.. Ripley was not in the country at
the time of the trial, says the opinion,
would hardly relieve the plaintiff from
the imputation Of negligence in not
having made some search at his office
during the year or more in which Mr..
Ripley was in the country after the
suit was brought. We think however,
that further search Of Mr.. Ripley be.
came immaterial in consequence of the
evidence that the bond was in the
hands OF Mr.. Cecil Brown at the time
he made his demand upon the plain
Tiff. Under all the circumstances Of
the case we think the plaintiff made
n showing of reasonable diligence In
his search for the lost instrument and
that consequently evidence OF the con
tents of the bond should have been re.
ceived when the same was last offered
during the course Of the trial.
Says the syllabus:
A party Offering secondary evidences
OF the contents of lost paper must
show that he has in good faith ex-
hausted in a reasonable degree all
sources of information and means OF
discovery which the nature of tho
case would naturally suggest and
which were accessible to him.
The character and importance OF Z
lost document will control as to the
degree of diligence to be used in the
search.
In suit against the principal on a
bond by the surety who had paid the
bond, the same having been given to u
building committee OF Masonic
Lodge to secure the performance of q
building contract, search for the lost
bond having been made Of each of tho
surviving members of the building
committee and of the secretary of tho
lodge and of the attorney who com
PEELED payment by the surety, held
secondary evidence was admissible.
---&~D---'
Argument in the Parker ranch con-
troyersy still continues before Judge