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

tAst IN order TO give jurisdiction -
said court 70 pass upon the merits OF
the case lit seems 70 he necessary that
this court should make q statement
Of the facts OF the case In the nature
cf a special verdict as provided by
Act So Is U. $, st. at l.. Up. ss\and
IS" May is the motion was denied.
las said cause came w on a bill OF
exceptions, and this court has no tu-
risdicticn 70 make findings OF fact In
matters 90 presented" The plaintiff
then moved that the court allow It's
appeal to the United States supreme
Court. which motion was denied. De-
cemher 4 the plaintiff obtained an
order from Mr., Justice McKenna OF
the United States Supreme Court that
the appeal nom the Judgment OF this
court be allowed on the plaintiff giving
q bond In the penal sum OF $1,000. con-
ditioned according to law and ap-
proved by the chief justice OF this
court. March 5. 1905 the plaintiffs
bond having been approved. 1t obtain
ed an order from the United. States
supreme Court that the bond operate
as = supersedeas and that the judy
rient be superseded sccordingiy. Upon
this appeal the United States supreme
Court reversed the decree CudgmenO
Of this court and remandea the cause
for further proceedings (Bieroe v.
Hutchins. so5 Z. s, s4o). whereupon
the PLAINTIFF moved for Judgment The
defendant however. insisting upon his
~ t.~~x-
passed upon as are not concluded by
the opinion Of the court above. this
court held that he was entitled 20 q
consideration of the points presented
BY these exceptions Sieros " Hut
chins is Haw. STA
At the time OF thu decision on the
exceptions this was the court OF last
resort for the case. IS no FEDERAL
question was involved and the appel
late relations between the courts OF
Hawaii and the Supreme Court of the
United States were not governed by
the law applicable to other Terrific
riss. but were identical with the law
applicable TO States Equitable Life
Assurance Society V. Brown. Isl L. s.
s0S. March 5. 1905. however. Congress
amended the Organic Act of April 50,
lSao. c SO. Sec. IS. by adding at the
end of the section:
Provided. That writs OF error and
appeals may also be taken from the
supreme Court of the Territory OF Ha-
vail TO the supreme Court of the
United States in sill causes where the
amount involved. exclusive OF costs,
exceeds the sum of value OF five thou
sand dollars
The Supreme Court IN Its opinion
takes the view that the proviso add
ed By the act Of March 5. 1895. to the
previously existing right of review
not only puts Hawaii on the same
footing as other Territories with re-
Spsct to this class of cases. but also
puts in force here the practise act OF
April :. 1874. CHI 50: Is Stat. l. %;
1 Suppl Rev. Stats :. This act pur-
ports 10 deal with appeals from Ter
rirorieS which have adopted the code
procedure. and its application to a
court which has always observed the
distinction between common law and
ehsncsry procedure in q common law
case in which the main decision was
rendered before the act was appli-
cable naturally gives rise to many con- /
founding questions
But no question as to the effect of /
these statutes arises in this case in 4
the view which We have taken of the /
defendants remaining exceptions. He
CONTENDS Cd that the findings OF the
trial court, to all of which he except !
81. are ros supported by the evidence: /
ca that II the findings can stand the 4
PLAINTIFFS acts. enumerated above.
show its waiver of its right to the
property sued for; ~ that by reason
Of those acts the plaintiff Is estopped /
by It's conduct and by the judgments
u this court on its appeal from. and !
wit OF error 70. the confirmation OF
the receiver's sale. and also is
sStopped 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
5ence in 50 far as they are findings
u material facts and not statements
II legal conclusions or immaterial
statements varying o. contradicting
written instruments. and that upon
these facts the decision Of the SD
orsus Court IS conclusive against the
DEFENDANTS contention For instance
he findings especially urged by the
defendant 20 be erroneous are the sixth
ending Of fact which also covers the
sixth conclusion Of law. and the fourth
conclusion of Law, reading IS fol-
0Es-
That the contract Of March Is. 1901.
vas an entire contract and intended
% 70 De. for . lump sum consideration.
zhich Consideration was Incapable Of
oeiag spportionei 50 as 70 make pos
zbEe the ascsrIainnent OF the price
4 the Eenahle and Eonltenable items
.hereo<-
That the payment Of sl0-s6 under
he contract OF March Il. 1901 and
he giving OF the note therein for FL
I4S5 secured by the bonds o. the
zo1z Sugar Co. Ltd. was in settle
ne1r and adjustment OF the contract
Z February q 1850. and neither said
ash nor said notes and bonds were
-ivea as z consideration for the p1r-
hzSe price OF the materials sued for
The Construction Of the written in
.erzuezr q Nzrch L. 1911, Is plainly
question OF law What IL vas in