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

In ,Ae supreme court 81 the Terrfssry
., Hawaii. October TERM 1907.
wnna.a ". Rserce. Limited v. elm
ton J. HrteAinS Trustee Exccp-
tons from circuit Court. First cir
cult.
Argued November IL 1877. Decided
December ~ 1897,
HArtwen. c. J.. wilder and RAllca. u.
E1eoSioa. waiver. es,oprel
There can be no waiver - a right
which does not exist. subsequently q
decision thS, the plaintiff In bringing
lien suit did nOS show It's election
% = right 70 treat the property as
sold precludes the possibility % a
waiver Il not % an eStoQpel but the
facts in the case do not show estoppsl
IN pals o. by reSo7G.
Rsplevin. pleading. evidence.
II IS NOT error - allow plaintiff 60
amend his petition BY Increasing the
alleged value % the property sought
70 BE- replevied o. by striking out the
word supplementary prior 70 CON
tract TIE exclusion " certain evil
dense % the condition % the property
Is 10, error.
OPINION OF THE COURT BY
HARTwELL. c J.
This was an action o. rspisvtn TO ~
cover certain rails. joints. spikes
switches cars, loco-ooeiveS, trucks
scales. lumber and materials which the
KonS Sugar Company hsi obtained
from ,hs plaintiff for 5 plantation rail-
way over land % which the company
owned the roadway for shout onethird
% s mile. an undivided interest for
s little less than two-shirds u $ mile,
the rest % tbs roadway being held
by the company partly under $ license
and partly by lease The defendant
claimed the property IS purchaser ~
receivers sale % the kcnS Sugar
ColpSny's property. The ko1S Com
pSny obtained possession os the p-cp-
cry IN question under the following
circumstances; February e. issA the
plSiatf1. by Us letter % that date.
proposed - the company 70 furnish
the company with the railway equip
ment and material 81 stated times Snd
prices upon payment in Honolulu Q.
drafts to- the purchase money attach
81 20 the bills Of lsiiag- The proposal
MAS accepted by the conasny's agents.
g SlS the property was shipped by
ths riSinri5 % Honolulu but the drafts
70. being pSi5 on presentation was
10: delivered 70 the Kons Company
urcu Nz-ch * ISe,. when the plsinSir
wross % the company as follows:
Honolulu z. T. Mar. e 1891
''koas Sugar Company. Limited. Eo-
aolulu. z. :
NSs1cls-sa- IN pursuance o. the
verbal agreement made between YOUR
president and William ". Ris-cs. Lin
lied NE hereby offer the following
terms II settlement OF the CONTRACT BE-
tween ne Holz Sugar Company LIN
tied snd William W Bisrcs. Limited.
as evidence BY Letter dated February
-. 800. and accepted BY the Kola So
gar Company. Limited. Fea- =. lss
We wiu take in settlement OF this
co1crSc. he sun q sI9.as3. Q. 3 sod
coin and the prOniSSo-y note % the
Ao1S Sugar Company. Limited. tc- the
sun - S.. e44-s3, IN rSvo- % william
W B5srce. Id. payable six months
stcs- date 81 tie Whitney National {
Bank II New Orleans. bearing interest
s. ths rae % seven an5 o1e-h< per
cent = - rs- cs1tl PEP sraun ans
secured by 6rSt mortgage ho1dS % the /
Ho-s Sugar Company. Limited q par I,
valcs equal ID tee note. sziS ho-es 1
beng parton Of s duly authorised is
SIC 10. exceeding szeAeGs- This offer
: co1Sirio1s6 upon ics .sccspcSnce By
yuE- payment % TIE money and 6sliv-
sry q the nocs- with coIlsSe-zL before
| ? II q THURSDAY, Nzrch isch. 4 D. i
.sl1-
CP'oa Scch pSyusls beng made 70 4
=. before the h9-r rzDs6. we VIII
ssIvs- 70 you the bis o. sale surhor-
Els yoC % take charge % ths rails,
.sco1o-iysS. cars. scales and Other ma
.sslS-S Do~ awaiting 6e-lTe-y. upon the
express condition and underwriting
-kzr sad rails. locomotives. cars sc2lss
Ind o-asr Ezts-tz1S are sri shan Re-
rain the properly - william W
8ssrce. Limited. until the full payment
= The nocs above described eoco-d1s
. It's rs-DS
ysry truly y0Es
w. " BIERCE- LID
By H 7 GILBERT