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

was properly overruled and as no new
showing was made by the replication
the defendant S demurrer to it should
have been sustained. The issue on the
plea IN the suit which was whether the
compromise had been made without
fraud or Misrepresentation was adjudi-
Gated by sustaining the plea and dis
missing the bill. The court could have
made a specific finding of a promise
made without fraudulent intent but the
holding that none was made eliminated
any supposition of fraudulent promise.
.sAfter hearing for two weeks on
the plaintiff s claim that she was in
dueed to compromise by the defendant s
fraudulent promise to pay her $4,000
the court did not hesitate to find, as
we understand its decision, that she
executed the compromise without fraud
or misrepresentation or promise of any.
thing and with her eyes open.
Two Courses Open.
sIn the equity suit the material fact
in issue was whether the compromise
was obtained by the promise made with
intent not to keep it. Both the promise
and the fraudulent intent were neces-
sary to be shown, failure of proof of
either of these requiring dismissal of
the bill. Two courses were open to the
trial court, first, to find that there was
no promise, when there could have been
no intent not to keep it, and second
to find or assume promise and then
find that the promise was made in good
faith without intent not to keep it.
The judge said: 1t seems to the court
that it is simply question of fact.
The fact presented is, was there a COM
promise made and was it made without
fraud or misrepresentation.
The question is, did Mrs. Along promise
Mrs. Burns a home or $4,000 or any
thing in consideration of her signing
the compromises 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. The plea
in bar is sustained Had the court
merely stated the broad question which
it first stated. was it made without
fraud or Misrepresentation. and then
merely said, the plea in bar is sustain
ed, which of the alternatives above
suggested it adopted would have been
open TO QOuDI. Inc court, however,
proceeded further and stated the pre-.
else question which is proposed to
consider and decide, namely: Did
Mrs. Along promise Mrs. Burns home
or $4,000 or anything in consideration
of her signing the COMPROMISED The
rule that estoppels are not to be based
upon matters that may be merely in
ferred from a judgment does not apply
TO differences that are necessary. FL.
C. & S. Co. V. W. S. Co., IA Haw. so,
So. AS we read the decision, there is
no room to infer that the court found
or assumed a promise and then merely
found lack of fraudulent intent. Its
statement of the precise question to be
answered excludes the possibility of the
inference ard the language used was
not apt or appropriate to express any
such finding. The decision is an adj
Indication that the promise now declar-
ed on was not made and bars the
present action.
"The plaintiff s demurrer to the plea
was properly overruled and as no new
showing was made by the replication
the defendant s demurrer to it and
also the plea in bar itself should have
been sustained and judgment for de-
PENDANT entered. -