The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1906-01-09

construction Of the evidence, claiming
that there was evidence showing that
3 Hirose mad paid the duty and taken
out the goods. The evidence tending
to such conclusion was by Custom
House employees and was vague and
uncertain. The testimony Of other
witnesses. particularly that o. HiroSe
himself. overwetghs such evidence and
satisfies me that the history Of the case
is as / have stated. Hirose had evil
IDENTIFY from the evidence. previously
done business with the Urabi Brewing
Co, but becoming involved they took
the precaution of sending the invoices,
which were in Hirose's name, to their
agent, with instructions to hold them
until Hirose should pay for them. AS
was explained they were made in Hi
roses name as they did not wish to
enter into the business of selling sake
in the Hawaiian Islands and paying
the license therefor.
THE LAW CONSIDERED.
cit is clear to me that, under the
circumstances, no title in the sake
passed to Hirose, the arrangement be-
ing that the delivery of the invoices
which would confer title should de-
pend upon his payment of the invoice
price and that failing the other part
of the understanding also fell through.
This understanding was based on a
proposition made by the Urabi Brew
ing Co, written to Hirose on a postal
card, that if he paid the price to Doyo
he could get the papers from MIN.
Where both parties are to do some
thing simultaneously, as, for example,
where the seller is to deliver and the
Sc n 10 Tripp these
concurrent conditions, and neither
party can maintain an action for
breach of contract without averring
that he performed or offered to per-
form what he himself was bound to
do 81 Am. & Eng. Encl. Law Qst
ED 629; 1 Benjamin on Sales Cor
bins Ed Sec 327; Watjen VS.. Green,
As n. J. Eq., 329.
1.-The trustee called attention to GER
tairf testimony by the witness Ono, on
his direct examination, that it was
agreed between Hirose and Doyo to
let the agent Ooyo) of Urabi (The
Urabi Brewing Coz draw that sake
out of the Custom House in the name
of Hirose or otherwise protected, that
if Doyo makes any profits on this mer-
chandise that he VIII make some, turn
over some possibly to the estate And
by the same witness on cross-examina-
ton. as follows: O. You testified that
Doyo promised in case profit was
made to turn the profit over to the
estate? A Yes Q. What was
the reason of your agreement to turn
over the profits to Hirose's estate? A.
Well, just because in this country that
license law is in force. The man who
"a man can't transact any legal
business without paying a license, and
this Urabi Co. has not paid any Ii
cense, and besides that the bill of lad
ing was in the name of Hirose, and
also that if the estate does not agree
with, why the goods got to be sent
back to Japan. AS matter of accom-
mediation 1 thought it only just and
fair for Doyo to pay in some amount
of money to the estate and give con-
sent
mo information was asked for from
Doyo or Hirose on this point and none
given. I consider this evidence to be
too vague and indefinite to support a
claim for the profits or a part of them. |
The report of the referee is. there |
fore, confirmed and the court will sign
an order directing the clerk to pay |
to the Urabi Brewing Co., or its at
torney. the net proceeds of the sale of |
the said sake