The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1909-06-11

liSo hdItaoH the supreme court manu-
ed down decision yesterday sustain.
ing the exceptions in the case of Bessie
R. Burns against Julia II. Along.
The syllabus states that sin an
equity suit the issue was whether
promise had been made with intent not
to keep it and the decision, as con-
strued by this court, was that no prom
Use whatever had been made The de-
cree dismissing the bill, based on the
decision, bars a subsequent action at
law on the same promise. -
In the course of the opinion the Su-
preme Court says:
This was an action of assumpslt to
recover $4,000 upon the defendant s
agreement to pay the plaintiff that sum
for compromising a suit in equity
brought by the plaintiff and others
against the defendant for an account
ing of the accumulations of a trust
fund, her removal as trustee and the
appointment of another in her place. A
compromise was made pending the suit
which the defendant pleaded in bar.
The plaintiff Bessie r. Burns then filed
a supplemental bill alleging that the
compromise was secured by fraud, con-
sisting among other things in the de-
PENDANT S promise to pay her $4,000
made with the intention not to keep
it. The defendant filed her answer to
the supplemental bill denying the prom
Use. The court after hearing evidence
sustained the plea in bar and made
decree d smissing the bill after Civ
ing the following decisions:
Although nearly two weeks have
been consumed in the taking of evil
dence in support of the plea in bar,
1t does. not seem necessary to the court
to take the case under advisement 1t
seems to the court that it is simply
question of fact The fact presented
is, was there compromise made and
was it made without fraud or misrepre-
sentation?
g The court in passing upon the
question acts in the nature of jury
instead of that of the court. The ques-
ton is, did Mrs. Along promise Mrs.
Burns home or $4,000, or anything
in consideration of her signing the COM
promises From all the evidence in the
case the court is satisfied that Mrs.
| Burns entered into this compromise
| with her eyes open, and that she was
aware of this compromise.
g The plea in bar is sustained
''The question presented by all the
three exceptions taken by the defendant
| is whether the plaintiff is estopped by
! the decree, the court having overruled
the defendant s plea that the decree
Hno1lu cd cd ho af
| Use. 1t is eontended by the plaintiff
that it is only by inference that it
| can be said that the court decided
| that there was no promise at all, a
| promise with an intention not to keep
| it being the fact in issue and not
| whether any promise was made. The
| defendant contends that the decision
necessarily disposes of the fact of a
| promise, with whatever intention, for
| if there was no promise there could be
| no intention
Specifically the pleadings, besides
| the plea referred to, were as follows:
| The plaintiff demurred to the plea on the
ground that the degree determined moth
ing in the equity suit except that it was
compromised without fraud or misrepre-
sentation, but does not purport to deter
| mine the separate collateral and Undue
ing contract on which this plaintiff sues
but an entirely different and separate
agreement The court overruled this de-
murrer and the plaintiff filed replica
ton admitting the equity suit and
pleadings but denying that the promise
to pay the plaintiff $4,000 was an
issue or that any allegation of prom
Use was made in the supplemental bill
for any purpose other than by way
of indueement to show fraud or that
the court found that the promise had
not been made, averring that the
Judges decision referred to $4,000
merely by way of recital with no adj
Indication as to the promise, and fur
Their that its reference to the promise
is indefinite and not conclusive and that
no adjudication of it was required or
justified by any issue in the suit or
that the decree was a final adjudica-
ton of the promise. The defendant
demurred to the replication on the
grounds that it admitted every material
allegation of fact in the plea and set
forth no affirmative or other matter In
reply and that it denied those allega-
tions only which were conclusions of
law. The defendant excepted to the
overriding of this demurrer and to the
denial of her motion for Judgment on
the pleadings. The plea in bar was
then submitted ON the pleadings, the
defendant excepting to the overrullng
of the plea.
Justice Perry's Status.
"When the case was called the pam
tiff s attorney objected to Justice FER
nv sitting on the ground that ne mad
acted as attorney in the equity SUIT
After the justice had stated what has
connection with the ease was the OBJ
lection was overruled and the attorney
was given leave te file his statement
later. We find the facts to be IN ac-
cordance with Justice Perry's state
ment which appears in the minutes
The fact is, clearly, that Justice Perry
has not at any time acted, in this or
in anv other cause, as counsel for either
of the parties to this suit and that
his only connection with the equity suit
was as attorney for certain other par
ties. No disqualification exists.
''The plaintiff s demurrer to the plea