The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1916-10-27

damage of the Plaintiff there would
manifestly arise cause Of action by
the plaintiff against the defendant for
damages, and, so far as anything in
the bill of complaint is concerned,
cannot see that the allegations estab'
liShed the absence of an adequate rem.
edy at law, as contemplated and under.
stood by lawyers and by courts, but ]
prefer to place my decision more spe-
officially upon the point of whether the
contract in question violates the terms
of Section 3477 of the Revised Statutes
Of the United States and, as to this
! point am clearly of the opinion that
it does violate that section and is, con.
| sequently, void contract and incapa-
| BILE Of enforcement
Clear To Judge Ashford
! cit appears to me to be very clear
~ established that the legal effect of
the contract in question, that is to say,
of the contract between the plaintiff
and the defendant of April 30, 1914,
| as supplemented or affected by the
power of attorney in question, is that
Of an equitable assignment by the de-
PENDANT to the plaintiff of a very sub
stSDtial interest in the contract of the
defendant with the United States gov
eminent and the proceeds thereof.
"Having reached this conclusion,
then, that the contract that the plain
| tiff seeks TO enforce is a void contract,
incapable of enforcement, it necessari
ly follows that this court should not
initially have made the orders that it
did make and, they having been i'm
properly made, should now be dissolved
and they are dissolved.
Receiver Curry's Compensation
~ viii take up. the matter of the
compensation of the receiver at any
appropriate time, either upon the appli-
cation Of either party or of the reeclv-
er himself
THE receiver is discharged"
Hilo Awaits Renewal of Work
Renewal of work on the big break
water at Hilo only awaited the action
Of Judge Ashford in the first circuit
court at Honolulu to act upon the mo
lion filed by the, attorneys, which ac-
lion has now come.
Speaking of the present situation of
he controversy between Contractor
Marshall and the American Surety
iompany. represented in Hawaii by
ice President Richard Deming, J. w.
RUSSELL, attorney for Mr. Marshall.
rade the following statement on Sun
lay last at Hilo:
lilo Lawyer Talks
"Upon the appointment of George s.
Curry as receiver in the injunction suit
begun by the American Surety Com.
1any against George +. Marshall, the
'ourt of .P"dgo Ashford made an order
directing Mr.. Marshall to execute an
assignment to the receiver of the Sep
TENDER warrant. amounting to about
"a 600, now due from the government,
ut on the advice of his attorneys, +.
y. Peters and myself. Mr.. Marshall re
fused to execute this assignment.
The American Surety Company
hen, through their attorneys, Frear,
Prosser, Anderson and Marx, last week
brought proceedings to have Mr.. Mar
shall punished for contempt of court,
tut these latter proceedings were dis.
missed, AS Judge Ashford was in doubt
as to whether his original order requir-
ing the assignment granted ex parte
without notice to the defendant) was
not imProvidcntlv mrde.
Court Action Anticipated
Mr.. Marshall has filed a notice to
discharge the receiver and dismiss the
proceedings taken against him. and a
hearing of this motion will be had this
Week. / have perfect confidence that
Mr.. Marshall will prevail in this mo
ton, in which event the warrant in
question which is being held by the
government authorities pending the
outcome of this motion, will undoubted-
10 ha &
he is successful in this regard, the en-
ployes and supply creditors will be paid
and work on the breakwater resumed
90 Affidavits have been filed by Mr..
Marshall showing that the work WAS
stopped as the result of the failure of
Mr.. Demihg, the representative of thu
surety company, to .cOuntersign checks
for the payroll.
Deming's Refusal Cited
"ln response TO the claims of Mr..
Deming that his refusal to countersign
these checks was based on the fact
that there were no funds in the. bank
TO meet payment of such checks, Mr..
Marshall's aftdavits state that there
was in force an agreement between the
bank, the surety company and himself
that Mr.. Marshall would be permitted
to OYerdraw an amount equal to the
current rock deliveries and $l4, 900 in
addition thereto, under which agree.
ment, therefore, Mr.. Marshall could
have OVeTdrawn at the time of Mr.
Deming's refusal to countersign the
checks. an amount aggregating $40, 900.
and that the amount of the checks sub.
mitted to Mr.. Deming by Mr.. Marshall
which would have enabled him 10 pay
his labor and for his supplies, did not
aggregate $4,000, The atfidavits state
that these ovcrlrafts have continued
each month for the past year"
According to other information it is
probable tina; in case Mr. Marshll wins
his motion to dismiss, the American
Surety Company will nj once take ac
tion to close the Wuipio quarry to tn
contractor, rs well Ms to recover on the
attachment already served and in this
way stop progress on the contract by
Mr.. Marshall, concluded the IIilo CORES
lpOndent.