?!W .V.i, C.
Hawaiian Gazette Supplement March 1888
Srremc Ccsrt of the Hawaiian Mauds.
:jairemy Tcna. lSb'3-In Banco.
H. JOIK502C VS. T. P. T1M)A1X.
im f fir Omrt Avti
TLis is an actien on a gaaranty. TUio dc
Scadaat by contract of ""S
!Kr 31, screed that C. L. Trsdale would
"is:tWcllv carry out aDd perform a con
" bui rdc by bin. xcith Smith and Johwon
"t-carry for tbera to the Halava "Mill tmx
' liady for rriudios, two crops oT case wbitu
the crops of 1SS1 andlSS2,now
usdwr on premises bold by Smith and
Jerrymander agreement with Tisdale ana
Stepson-'" Ad fnitber undertook toguar
tetee and indemnify said Smith and Johnson
fitaa all loss or damage by reason of the non
ixsfcrmance of said contract by fault of said
C L. Tisdale . m- , ,
By that carting contract, said C. L. lisdalc
trecd that cacii team employed in doing said
carticg, should do a fair and honest days
wcrfc, and each team should be reckoned at
teres 50-00 dollars per day. The verdict of
ibe jptt at the October Term was against the
Jterciaat for I'ISOO damages; and the defend
ant appeals to this Court.
Bt the verdict of the jury it was conclu
iively decided that C.L. Tisdale failed to do
fair and honest days works under said carting
sntatct and that "the direct damage thereby
arising to the plaintiff was 742.03. The rest
;f ifce damages were given becauso of the in
rarv claimed to arise to the plaintiff from a
-ivroarful sale by C. L. Tisdale, through the
cefcrscant, bis agent, of the plaintiffs sugars
EHXciaciBred from his cane, carted to said
rcUl ly said C. L. Tisdale under the said con-
The plaintiS admitted at the trial, that at
the time the sugar was sold he owed C. L.
BsCilc for balance ot carting over and above
ill damages for unfaithful work, the sum of
?1H.0. The plaintiff uever made tender of
this sum to the said C. L. Tisdalc.
f L. Tisdale claimed that the balance due
ra iV carting was ?19Hi.73. On this point the
Tcriici of the jury is in favor of the plaintiff.
Use Scgars sold were worth, when sold at
their then market value, fhe sum of S3015.S1.
Tic sale made of sugars was at much less than
.t,- , .Ti,t value, and they were mainly
orght I'V the defendant.
The sale was made to collect said balance of
HS5S.73 dwmcd due, under a chattel mort
gage given by said plaintiff Johnson, on said
tucars, to said C. L. Tisdale.
Prior to the sale the said bill for teaming as
claimed by C. L, Tisdale had been presented
is the plaintiff and pavment demanded, and on
Aujxst 11, IS?-. C. L. Tisdale, through de
fendant as his attorney in fact, notified plain
tin in writiag.that as ha had failed to settle said
buL he should take possession of said sugars
to pav tlte same, and expenses as empowered
br said mortage, and that unless the account
1B3S settled la two weeks he should sell the
sugars at public aueticn.
To this notice the plaintiff on the samo day
replied in "writing as follows:
Kohala. August 11, 18S2,
1 P. Ti&tek, Hofcww M-l received a
taUfication from you this morning, that in
case I did uot settle your bills presented, in
two weeks, yon would sell enough of my sugar
to sxtisfv thesarac-
As ronr bills are not according to agreement
I refuse lo pav the same until satisfactory-
1 hcrebv notifv -ou that any sale yon may
coke T anv of ray sugar will bo illegal and
void, and that 1 shall hold yon and all parties
concerned in such sale liable to mo lor dani
eges. (Signed,) Hk.vhy Jouxsos.
Tae said ehattel mortgage provides that if
default be made in payment of any balance due
ror teaming to said C. L. Tisdale, he may take
possession of said sugar and sell the same at
tcllk or private sale, and apply the proceeds
tc the pavment of said amount due, aud ex
penses, arid return the balance to the plaintiff.
The mortgage recites that payment for the
teaming is to be made when it is done.
This last clause is to be construed rcason-
aThe plaintiff was not in default in this case,
t?, hill therefor was presented.
"When presented as appears above, tLe plaintiff
TheKJCBt due was in controversy between
the pais. It was an unliquidated sum.
The imdaat claims it was liquidated, as
. irTi Wtrns; to be reckoned at S7.50 a day.
-rv mtt tiT sncli lsads were to be " tair
aBdhonc' loads. The verdict of the jury
finds they-re not so- The value of the loads
. lK-dti vraaunliauidated.and required
for the dctunation thereof the decision of a
W txibut It was uncertain becauso of
QTrefat of the defendant.
n.fl rlefeJit savs the mortsrasc is to be
.?.rtniT:isheJom one securins unliquidated
Etliere been uo dispute as to the
land of loadss mi-ht have been true. But
disoute tdered the mortgage clearly
sscuritv for ailiquidated sum.
In snch a cno seizure and sale umler a
mortgage woae valid till after the amount
doe became fiiiv legal investigation. See
Do Molt vs. Bm, 4 Ed. ch. It. P. 307, 316
17. Ferguson. Kimball, 3 Barb. Ch. 11.
616-1"?. Ferguvs. Ferguson, 2 Com. 360-4.
Tntil default made the plaintiff had the
s-ef-sMon of ttsrar.
The defendanounsel asked the Couto
instruct me jur
i '-ThatChaL. Tisdale under the au
thoritv given tot by the mortgage from
JnTmsnnhad twn take possession of 'John-
son's sugar to ptie balance due on team
2. "That Johl having admitted a bal
of S1200, ttdue from him to Charle
L. Tisdale for tea-, die latter had full au
thority to take pjiion of plaintiffs sugar,
itcot'beicg pxete that a tender was made
of this amount.
The Court refus to charge, and we think
ifef Court was ns
Tha rcortaase fles as nnoted above that
in case default be in payment of any bal
ance due, the saia Tisdale may tafce pos
session of the suga
Had. a legal tendja made of the amount
5ae it -would fcave equivalent in effect to
savKSct and 0 e could nothave taken
or retained poEsesS jdhis lien would have
beea lost. See Jat vs. Crafts, IS John.
U0, "Fanners1 Fire Go. vs. Edwards, 26
Tffend 541, 556. ITider was required to
be made in the cas effeet would be the
mmT as that of a tenavicg plaintiff liable
for &e balaace he ay to be due.
la the case of the , l States va.Lee, de
. died in the Suprtjnrt of the United
Stte, Dec. 4. ISS2. er J. who delivered
tke prevailing opimsf quoting me laii
xamsv ot the same 'in the case cf Hills
-rs. Albany Exchange "It is a general
imlethathen the t0r performance of
aa act is necessary to ablishment of any
-right against another' this tender or of
fac is waived or becotjecessary when it
is MaeoEably certain e offer will be re
See Albany Law J., Vol. 27, n. 1.
not dated and delivered at the same time, thev
so refer to each other that the clarises in the
mortgage to 0. L. Tisdalo become and nro nec
essarily a part of the teaming contract. Sec
Sawyer vs. Ilammatt, 15 Maino 40; Van llagen
vs. Van Uensselaer, 18 John, 420; Tarsons on
Contract, Vol. 2, p. 15, n. u.
The defendant's counsel says that the salo
of the sugar was either authorized by the
mortgage or it was a tort, and claims that if it
was a tort he cannot bo held for an illegal act
or trespass on tho part of 0. L. Tisdale. Wo
hold that this is not so. Tho wrongful breach
of this part of C.L. TisuWs teaming contract
became a tort, and for it tho defendant is lia
ble. The counsel cites to sustain this point Bud
ley vs. Folliott. 3 Burn & East SSt. It does
not sustain" it.
In that caso a salo was made of a tract of
land in America, during the first American re
bellion, and tho grantor covenanted for tho
peaceful possession of the granteo as against
himself, his hoirs.and assigns, and of and from
all and ovcry other person, or porsong, whom
soever. The Americans passed au Act forfeit-
In this case, as shown by his letter of Au
gust 11, tho plaintiff was ready and willing
and offered to pay the balance of the teaming
due C. L. Tisdale which he refused to rccieve,
and demanded much more than ho was entitled
to, as found by the jury.
.Thereafter tho plaintiff had a right to de
mand his sugar and the subsequent seizure and
salo of it was a conversion for which C. L.
Tisdale was liable-
Until Johnson made default in payment, Tis
dale had no right oven to take possession; and
Johnson made no default. See also Iloyt vs.
Spragne, Gl Barb. 497,505-6, Adams vs. Clark
and others, 9 Cush. p. 215, Jones vs. Tarleton
9 Mceson. and Welsby p. G4-i. As charged
bv the Chief Justice, the seizure and sale were
at tho risk of C. L. Tistale.
The defendant further objected to the charge
of the Court,, because it authorised the jury to
give damages for loss resulting from the salo
under the power contained in tho mortgage,
which sale occurred after the suit was besun.
At that time C. L. Tisdalo had wrongfully
taken possession of tho sugars.
The plaintiff had a right to recover the wholo
value of it less the balance due for tcamiug.
The sale was merely a now wrongful act,
occurring after process served, and being the
iucident and direct object of taking possession.
By numerous authorities the plaintiff had a
right to recovor damages arising from that
sale. See Sedgwick on Damages, p. HOtolH,
Wilcox ct. al. vs. the executors of l'lummcr, 4
Peters It. 172. If this suit then were against
C L. Tisdale, what we have said shows that
he would be liable for the damages which have
been recovered against the defendant.
This brings us to the remaining question in
Tho defendant's counsel urges, with great
confidence, that the defendant is uot liable on
his guaranty for the damages recovered against
him, nor for any damages, becauso thcro was
duo C. L. Tisdale. Sl,200 over and above all
damages for breach of the tcamiug contract for
which only defendant was liable. .
He says defcudant's liability became fixed
upon th delivery of the last load of cane. That
the damages arising from seizure and salo of
the sugar did not arise from the contract which
ho guaranteed, but from subsequent proceed
ings, upon a uittercnt contract, namely, ttic
mortgage from Johusou to C. L. Tisdale.
To sustain this view he quotes many nutlior-1
itics, the law of most of which we do not dis- 1
He specially relies unon tho atec of United i
States vs. Tillotson, 1 Paine, C. C. p. 320. .
He wishes the Court carefullv to examine '
this case, and claims that it is much beyond
the facts of his client's case, in favor of his
discharge. We have followed tho wisii of tho
counsel about this case aud fully agree with him
that tho guarantor sought to bo held therein
should bo discharged. Tho facts show an
agreement to build a fort for tho United States
of brick, for which the contractor was to re-
ceivo $11.00 for overy cubic yard of brick i
masour, which contract tho defendant guar- i
antccd. And thereafter the contract, without t
the consent of the guarantor, was changed so
that tho material should be m largo part of a
certain composition called tapia, being a spe- j
cics of artificial stone, for which the contract- i
or was to receive $10.00 a cubic yard.
This constituted an entire change of the con-'
tract guaranteed, and no authority can be found i
which would hold the guarantor for damages j
under such a changed contract. Tho other j
cases cueu uv the defendant s counsel aro to :
the same effect, and need not be specially con- j
It is not preteuded in the case at bar that i
the teaming contract iu itself was changed, but ,
it is said that the defendant is sought to be j
made responsible for damages under the chat
tel mortgage to C. L. Tisdale, a different con
tract and the pavment of which damages he
did not agree to guaranty.
On referring to tho contract of .guaranty we
find it bears date December 31, 1SS0. and
agrees to guarauty the performance of a con
tract for carting cane made by C. L. Tisdalo
with the plaintiff. , 1
The conditions of that contract were con
tained in three papers, the bill of salo and
teaming contract so named, and the chattel
mortgage from Johnson to C. L. Tisdale, aud
the chattel mortgage exhibit "E" from C. L. !
Tisdale to Johnson, on which tho guaranty
was written. On examining these papers w-e j
find that they are between the same parties,
and aro dated respectively December 31, 18S0,
the same date as the said guaranty. That they j
and the guaranty were acknowledged before
the same officer on tho same day, January 7, i
1SS1, and doubtless they were mutually deliv
ered, or intended to be, on tho day they were
acknowledged. Each of the chattel mortgages
refers to tho teaming contract and the mort
gage from C. L. Tisdale to Johnson was given
upon teams sold by Johnson to C. L. Tisdalo
further to secure the faithful performance of
the teaming contract.
In Makepiece vs. Harvard College, 10 Pick.
20S, 301, Shaw C. J. says "Several instruments
made at one and the same time and having re
lotmn tr, ilia snmi Krihiprt matter, ninst he ta-
1 . 1 , nr ni fr.no.ltimi OIlll l,A COM i O (j DC
KCU IU ire patio uni- " ., l.n l. J
strued together for the purpose of showing 48 pes Atenden silver plate Imps j ass ted,
ing the lands, and after the'peaco in 1783 took
possession of tho lands under that Act. The
Court hold that tho grantor; did not covenant
against, and was not liablo for their trespasses.
Had tho trespasses complained of boon thoso
of tho grantor, or his heirs or assigns, or of
thoso whoso acts ho agreed to insure against, it
would have been liko this case, and tho grant
or would havo been holden, as tho defendant
Tho damages arising from tho seizure and
salo aro in no senso remote. They aro tho di
rect consequences of tho wrongful breach of
his contract by 0. L. Tisdalo. Soo Field on
Damages, p, 9. Sec. II; p. 10, Sec, 12; p. 29,
It is true that tho maxim Slridissimi .jiaHs
is proporly applied to tho construction cf con
tracts of guarauty, but that maxim docs not
require as is asked iu this case, that plain
provisions of tho contract guaranteed shall bo
eliminated from it.
Tho judgment must bo affirmed with costs.
A. S. Hartwell for Plaintiff; F. M. Hatch for
Honolulu, February 26, 1SS3.
WEIX'S MUSIC STORE
105 AND 107 FORT STREET.
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Also, Every Description of
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TELEPHONE No. 211
ETC , CONTRACTED FOR.
WATER PIPE & FITTINGS, mi
Sole Audits in these Islands for llic
ALL SIZES IN STOCK.
CIRCULARS AND PRICES ON APPLICATION
Silver ! Silver ! Silver !
43 -CASES OF HOLIDAY GOODS Has Been Received by
ar. FISHEL, OP
The Leading Millinery Store
Corner FORT and HOTEL streets.
2-t pes Meridea silver plate Castors,
2-i pes ireriden silver plate Cake Baskets.
2i pes Icriden silver plate Butter Dishes,
40 pes ileriden silver plate Pickle Dishes,
SG tics ireriden silver plate Goblets,
30 pes Meriden silver plate Spoon Holders,
24 pes iTeriden silver plate Card-receivers,
Alenden silver plate v ases,
what was the true contract between the par-
And in Cornell va. Todd, 2 Denio, 130-33,
Judge Bronson say "It is undoubtedly true
that several deeds or other. writings, executed
between the same parties at the same time,
and relating to the same subject matter, and so
constituting part of one transaction should be
read and construed together as forming parts
of one assurance or agreement." See also
Hanford vs.Eogers, 11 Barb. 18, 20; Pepper
vs. Ilaight, 20 Barb. 429-35; "tfcXulty vs.
Prentice, 25 Barb.204-S; Hathaway vs. Payne,
31 X Y. E. 92, 100; Cow. & Bill's notes to
PhHKns Ev. n?. 1421-2. Parsons on Con. Tol.
2, p. 15. ;
Under these well settled rules the three con-
tracts-between C L. Tisdale and Johnson were ,
oarts of tho same transaction, and aro io do
. , i t - - r .7 r i T
construed togetucr, ana me uinmng vuwmiuua
of the teaming contract arc to lc determined
by examining them all. If there are any du
ties pointed out by either of those instruments
which refer to the carting and delivery of the
cane or the payment therefor, which C.L. Tis
dale was to perform, or any acts thereby pre
scribed which he was to do or to refrain from
doing, the defendant agreed that he would pay'
all damages arising from U u, iisaaie s ian
) ure to perform those duties, or to do or refrain
' from doing those acts.
! It was just as important to the plaintiff that
i C. L. Tisdale should be fair and honest in his
method of collecting his pay lor tne balance oi
teaming due, as in doing the teaming, and the
former covenant was jnst as much a part of the
teaming contract as the latter. And the" de
fendant agreed that O. L.Tisdalewould "faith
fall v carry out and perform that contract" and
that he would indemnify the plaintiff from all
loss by reason of the non-performance thereof.
Every phrase and sentence in either of those
documents which relates to the teaming con
tract is a "part thereof. Even if they were
45 dozMeriden silver plate Napkin Rings,
60 doz "ATeriden silver plate Dessert Spoons,
Forks, tc, tc., fcc.
Assortment of :
Assortment of Glovo Boxes.
Assortment of Writing Desks
Assortment of Work Boxes,
Assortment of Ladies Toilet Sets,
l Assortment of Photograph Albums,
, Assortment of Traveling Necessaries.
, Assortment of Leather Card Casesi,
! Assortment of Shell Card Cases,,
Assortment of Embroidered School Bags,
Assortment ot Ladies Bathing Suits,
Bargains can be expected, as these Goods have
to be sold; bring whatever they may bring, -on
account of the want of room.
At the Leading Millinery Store,
CHAS. J. FISHEL,
COltXEK roitT ASD HOTEL HTfi.
n. L. CHASE.
THERE IS XOIDIiE GOSSIP lOVT
ever, that the undersigned will take Portraits in
any style or views to order in th best ttyleof the
rhoto-napMc Art, and on themoit Reasonable Terms
-bntTtS idle cossip whlth e ays " he will not try to
pleac;r' for he alTOy tos and will be willing to please
iverroue who can be suited; and never treated anyone
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romcand see for yourself theni Is always two side to
a story. (glS 3m)
A Book for the Parlor Table.
V Book of Interest to all Readers.
Eminently a Boot of The Times.
" THE HAWAIIAN TEMPERMCE YEAR BOOK."
Devoted lo t'ac Advocacy of Total Abstinence
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Edited and complied by D.M. CROWLEY, late of
Lodse. I. O. G. Sydney.
FLXE TCTCSED'fcN CE, "0.
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838 Vhotosraph Gallery, cor. Fort and King St,
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Believlns that there la nncnltlratcd LAND, ok
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m 'Mnm Maiiuiactumrs
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