The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1916-10-27
Judge Ashford Discharges Re-
'--A ceiver IN Case Of Surety Com
f.. pany Against Marshall
iiAoLDs CONTRACT BETWEEN
/; I PARTIES IS NOT VALID
Temporary Injunction and Order
"'' of Attachment Are Both
~ Wa Set Aside
iFrom Mednesilnv Advcrtiser.l J

s(From Wednesday Advertiser)
Dissolution of the temporary injunc.
4 'tion, dissolution OF the order Of attach.
mcnt and discharge of Judge George s.
Curry as receiver, were ordered by
Judge Ashford yesterday in the case of
the American Surety Company of New
York against George Z. Marshall, the
4 q HilO Breakwater contractor.
m An interlOcutory appeal to the su-
-preme court was denied by Judge Ash,
$ ford. Notice Of exceptions to the vari-
Gus rulings Of the court were noted
y, and the case will eventually go up to
4, the higher tribunal for settlement "f
the questions involved, even before it
can come to trial on its own merits.
~. The surety company instituted pro
,,ceedings against MARSHALL for speeITc
x performance OF contract between it
. and the contractor In his decision of
yesterday Judge Ashford finds this con
3 tract void and claims it is incapable
jsof enforcement. .ttr
., Breakwater Work Tied Up
The proceedings have tied up work
on the Hilo Breakwater. Judge Ash
ford 5 rulings Of yesterday would per.
!, nit this work to be resumed. Should
y the matter go higher-to' the supreme
, 7court-the matter will remain in statu
" quo and the work remain at stand
still
- Among other things the company
claims that the contractor is indebted
to ii in the sum of $4,000. II also
claims that Marshall is insolvent and
= has admitted il TO, the company.
|. The motions were argued before
Judge, Ashford the past few days and
only closed yesterday. Walter +.
! Frear and M. F. Prosser appeared for
I. the surety company, while Emil G. Pet:
ers represented Contractor Marshall.
~ Judge Ashford's decision, in full, is
, .as follows: ~.
|. Judge Ashford's Decision
M t''tIt is admitted, by counsel for the
plaintiff that the character Of this
: suit is suit to specifically enforce a
contract" says Judge Ashford. "The
contract referred to is a contract be-
tween the plaintiff and the defendant,
z entered into April 80, 1914, copy of
. p'hich is attached 20 the bill of com.
, plant and supplemented, think we.
+" may say, by certain power of attOr-
.
- nominees Of the plaintiff, one being
Richard Deming, one of it's vice.presi-
dents, temporarily d" resident in the
Territory, and the other being H. V,
= fPatten, the cashier of the First Bank
of Hilo,' i'm which bank il was pro!
posed, in and by the contract in uues-
iation, the deposits Of funds should be
Z made and upon which checks should be
drawn.
80 est will hardly be denied that a
y court of equity cannot be expected to
specifically enforce void contract
that this contract is void as being in
contraventi0n of Section BAIT of the
!, Revised Statutes of the United States
din that it constitutes, in effect, an
Is ,equitable assignment of the contract
or Of an interest in the contract en-
tered into between the defendant and
the United States for the completion
i,of the Hilo Break water.
Limit Decision To Statutes
Much of the argument that has
been submitted to the court has been
! addressed to points other than the
legality or illegality validity or invalid
ity, of the contract in question as
affected by the section Of the Revised
Statutes mentioned, but / feel that the
decision may web proceed upon and be
limited to the statutes in question.
oIt is true that criticism of the
pleadings has been INDUCED in--that is,
Of the frame and manner and method
ie0f allegation as shown by the bill of
complaint, and if that particular point
were necessary for decision l think l
should be obliged to decide that it is
faulty, but / do not consider il neces.
Eary TO decide whether the bill of com
/. plant sets forth cause of equitable
Nsognizance such as to entitle the plain,
tiff to the relief asked for, If there
were no obstruction in the form or
in ,such form as is offered by section
.5l77 Of The Revised statutes
!. Going Back To Bedrock
Eet US get back to that, which
.feally throws the matter into very
narrow compass, as il is alleged that
n certain contract had been made; that
the defendant is about to violate il
and that the plaintiff is entitled to the
7, reli, I sought for here in order to pre-
vent its violation or, more specifically,
ito secure its specific performances. =
sfThe initial grounds Of equitable
Jurisdiction may be briefly adverted to
i and J. ~ claimed tn; 4 theSeagtoundsF rest
\ upon the lack of a suitable or adequate
!. remedy ut law. II it were necessary
1, to decide that point should be
!. obliged to decide against it, because it
seems 20 me that there Is an adequate
remedy at law as contemplated by the
,auihoritiea
q IN order to constitute an adequate
aremedy at law it is by no means neces,
snry for the parties or either of them
/, 70 be liable 10 point to a specific fund
out of which the plaintiff may be paid
the amounts WHICH are alleged to be
due him
Queytson Of Valid Contracts
ie,a .sIf che contract in question is a
valid one and II 1t has been OF shall
! besgNiolatod ghy ths defendant 10 the
~ 10 AfaNA HfaF"G.i a. =, ,,rwt III.