The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-12-23

But no question as to the effect of
these statutes arises in this case I'm
the view which we have taken OF the
| defendants remaining exceptions. He
! contends ID that the findings of the
| trial court, TO all OF which ne except
! ed. are not supported by the evidence;
/ CD that IL the findings can stand the
| plaintiffs acts. enumerated above,
| show it's waiver of Its right to the
property sued for; 80 that by reason
(, of those acts the plaintiff is estopped
! by its conduct and by the judgments
| Of this court on its appeal from, and
! writ OF error to, the confirmation OF
the receivers sale, and also is
estopped by the record from claiming
the property or asserting ownership
thereof.
We are of the opinion that the find
ings are supported by undisputed evil
dence in so far as they are findings
of material facts and not statements
OF legal conclusions or immateriaI
statements varying or contradicting
written instruments. end that upon
these facts the decision of the SUI
preme Court is conclusive against the
defendants contention. For instance,
the findings especially urged by the
defendant to be erroneous are the sixth
finding of fact, which also covers the
sixth conclusion Of law, and the fourth
conclusion of law, reading as fol-
lows:
THAT the contract of March 10. 1901,
was an entire contract and intended
so to be. for a lump sum consideration.
which consideration was incapable OF
being apportioned so as to make pos
sfble the ascertainment of the price
of the Iienable and nonlienable items
thereof
That the payment OF $4,000 under
the contract of March 13. 1901, and
the giving Of the note therein for S37,-
044.53 secured by the bonds OF the
Kona Sugar Co., Ltd, was in settle
ment and adjustment OF the contract
of February Il, 1900, and neither said
cash nor said notes and bonds were
given as a consideration for the pur-
chase price of the materials sued for"
The construction of the written in
strument of March 10. 1901, is plainly
81 question of law. What e was in
tended to be by the parties is as plain
ly immateriaL That the cash pay
ment and the giving Of the bonds
under said contract was in settlement
Of the previous contract appears from
the face Of the written instrument. and
the testimony of the officers and agent
Of the Bierce corporation, relied on
by the defendant, to the effect that
the agent was endeavoring 10 collect
the purchase price Of the material can
have no effect in varying the instru-
ment itself. The matter Of segregating
the lienable from the nonlienable ar
ticles by reference to the contract OF
February u was material only upon
the theory. now concluded. that the
lien suit affected it's rights.
The two contracts between the plain
tiff and the Kona Company, as well
as all the material acts Of the plaintiff
which are relied upon as constituting
election, waiver or estoppel, are mat
.ers Of documentary evidence, and 1t
vas for this reason that this court
said: Upon the question Of election
N this case the material facts are IN
disputed and the construction OF the
which are in writing, Is a
matter Of law for the curt. tl6
fIaw. 42s.) The Supreme @. urt Of the
United states likewise said: FThe