The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1907-12-27

by the Supreme Court and are net
/ open to dispute except 80 far as they
depend upon rulings OF law" which
we ccnstrue as meaning. ARE not open
TO dispute In any event." and not. as
now contcnded by the defendant. ARE
not open to dispute for that reason -
II appeared to us In considering the
case at the former hearing of the de-
PENDANTS, exceptions that the contract
OF March Is. 1901. was supplementary
10 that Of February 81. 1900, In EXTEND
ing the time OF payment OF all but
$4,000 OF the purchase money. securing
the balance by the note and bonds.
and that the retention OF title was for
further security by way OF mortgage.
but. the appellate court declared that
this contract took the place OF that
previously made" Under this decision
this court is not at liberty to eonstrue
the second contract as merely chang
ing some OF the terms OF the earlier
contract and not as complete sub
stitution and effscement of the con-
tract.
As TO the claim Of waiver. the pass
ing OF the title being subject to .
condition precedent the subsequent
election OF the plaintiff to treat the
title as having passed and Its waiver
of the condition precedent are but two
aspects OF the same question. The
matter of waiver was fully discussed
in connection with the question of cleo
ton in the defendants brief In the
supreme Court as appears by that
brief now filed with us and by its
summary in the Official report. AL
though the decision OF the Supreme
Court does not use the term waiver"
| 1t sufficiently appears throughout that
waiver OF the condition precedent Is
the matter under discussion. as, for
example. when the opinion says "the
election supposed and relied upon Il an
election to keep the contract In force
but 70 leave out the reservation OF
title" cos L. S. SAD. II the plaintiffs
acts. relied on by the defendant. would
amount to a waiver under any circum-
stances. the decision of the Supreme
Court proceeds upon the broad ground
a condition precedent cannot be passed
by any unilateral act of the vendor
Whether the question of estoppei in
pals is covered by the decision of the
Supreme Court or fairly included in
its reasoning or not we see no grounds
upon which the defendant can claim
the benefit of any estoppel. He could
fal
ton OF the plaintiff that this property
belonged to the Kona Company for
the reason that the plaintiff had re-
ceded from that position before the
sale took place and at the sale read
protest claiming it as its own.
IF both parties are equally cogni-
zant of the facts and the declaration
OF one party produces no change In the
conduct of the other. there is no es-
toppel-" Goo Kim V. Holt. 10. Haw. IS.
There was no estoppel by the judg-
ment confirming the receivers sale as
far as jurisdiction was concerned Us
Haw. 71O nor by the decision that the
order OF sale failed to show that it
included any of the plaintiffs property. |
IN this action was not before the court |
in those cases and If it had been pre-
scented the court probably would have !
had no jurisdiction in those equitable l
to determine the title.
The defendant has pointed out that /
the decision OF the Supreme Court con-
corning the effect Of the plaintiffs lien /
action appears to have been based in |
part upon the view that the plaintiff /
had made a mistake as TO the owner i
ship of the land on which the railway
was built, the court remarking THE
fact that a party, through mistake,
attempts to exercise a right to which /
he is not entitled does not prevent his
exercising one which he had
and still has unless barred by the pre-
vious attempt" COS Z. S. s47.) If the
evidence showed, as it does not, that
the company owned all instead of
about one-sixth of the land over which
the railway was made this would not
affect the decision that the assertion
Of q lien by one which has title, so
long as it is only an assertion and
A11-A--S ~ AlC-C-- Q ALAAoldSr-
Qb.)
The defendants exception to the re-
tusal OF the trial judge TO find separate
values for the articles furnished can
not be sustained since the second con-
tract does not mention the prices, and
their separate values with reference 10
hat contract are immaterial-
The only exceptions TO rulings prior
70 the Judgment on which the defend
ant relied IN argument are % TO al
owing the plaintiff TO amend its COM
plant by changing the averment OF the
FaIue Of the property first from $500
70 S70.0e5 and then % 100 and by
striking cut from the complaint the Il
FOri supplementary before the word
contract" and 90 10 ruling out Ger
ain evidence Of Scott. the first receiv-
r. concerning the condition OF the
property. on the ground that ne was
not an expert
The amendments were properly al
owed under the statute (Sec- 173s P
- Before the property was deliver
d TO the plaintiff the defendant OBJ
aimed a return OF IL 70 himself upon 4
lis statutory bond in double the value