Newspaper Page Text
IBteiflifiiiitftiHi SaMn Beard
AT THE POPULAR MILLINERY HOUSE OF N. S. SACHS,
IQ4 VoftT STREET, 'HONOLULU, . I. f
BIGGEST BARGAINS EVER OFFERED!
i UJ - t J.CT ..-.
Full Requiar Made Hose, All bizes
- Mr - I rt
-- KXJKi M- -?..,, .. - V.Vk
60.?u4 , E5
nfior tiin En Wllrfl iiflllb tlUlfom imfctSOl
SPEbiaiLbfl0F i; : '''
T1U. fflHV CKM l t TVBJ FLOW jl IDE OF roU"HLD LIST STEEL, ud c..n.j
adies'ui Straw Hats at $1.00
ro TJ'm'rUif''' . t
PACIFIC HARDWARE CO.
TORT STREET. HONOLULU,
Have Just Eeccived an Invoice of
Slabs "fc Bowls
ty Xiato Arrivals I
Brooking;, ;,Fiirrotsr and light Steel Plows,
Till. I.ITJT lSJ'llOIllJ TnTLIi
Agents for California Wind Mills and Pumps
Mir.Mii.i mi: stock, ua.nlhia
ATTT.Tf! Tt AMS
AGRICULTURAL IMPLEMENTS OF ALL KINDS,
Cutlery, Lamps, Chandeliers, Lanterns,
HOUSE FURNISHING GOODS, KEROSENE OIL,
Cylinder .Cups, AJbany Cylinder Oil.iand Compound
Lubricating Oils of all Kinds.
$ Correspondence from the country will receive careful attention.
'I2TD1A RICE MILLS
107. 103 & 111 PREKOWT
1 iic caansw ana impniTciaciiifi tfct, Tropric
j tf,AJS.as imij.it.. A. E-41
if tfitfH WOT m 1. tf ni itnprt iLin u are now tli jciti.ttoii
- i M kiu if udimriminl The jleid al thee
w? - -Ta iw pormliT r
?e the Rates for the Hulling a Cleaning of Paddy.
in Jinnw it i.nvM,n at Tiii.hAX in.Misr aii.ls.
Till. IflLUIVIM ,3HO Br -TAMED: '
l4 In ttM j IrM or Y ul Rice
tw -I mrnPfmmrmUf mutt c'l
lilli Lrrrtinbllllj toMrUI.
Tih l.nilrr 1 rrwlont from MnpMurlLr to
ofiwi com put a M of in riranfl Klcc
AM) Slh flic 111 it r Knir It jay tm-ma&d
Orel- IUmiC)etn'ad purtcolirlj in
CONSIGIJOIENTS OFgADDY SOLICITED.
"Wm. ML. GTREEJN "WOOD-
Gcnf ml ConuniJn Merchant -and Proprietor of the
INDIA RICE MUXS. San Trncicv CaL
cw by liate Arrivals
FROM SAff FRANCISCO,
HEW YORK & ENGLAND.
Received hj Castle & Cooke
ALSO. TO ARRIVE Br VESSELS DUE FROM ABOVE PORTS, AND
To Noil at IiOTTEST B A.TBS
Suitable forPlantations,Country Stores
r FAMlLIBb. Ortlcrs Filled at Shortest Notice aud vith Satis-.Lt&
vl liTjJMo rurchascrs? Attention i Called to Our
Improved- faris PL O W
i, Hi Hup OCT aan Brratlaxltntatlwltatlirt Alusoltcr of
i ' yi XjliiiFlawlo.JoaaDtTrram ic G,o; flout.
&Km Iti Jranr luiiyit. AA afhcsX tleyl to oar older ritnu?llocf,u 1 Sand S cjlb
f nw ftirmilViJUlttel. Hw Ada UiWkaadlc; 1 red Uatlci
HtMit ,ay t lodu ltSMjuJlI.. tt. I. l.lU..ndIiiidi,Oiiolio.
?1"- nsi fd A,I )Rf ratine Bcrl Flat lodla llafcbfr Mnn rMLr m "4 Uch .
SMI V a lc LeaVatrrand Laritifp lBdtaKnrr Mcmaalacklii; reBcdacdMtoaTt aUetcre
aa . 1 udMtmKlij d Machmnr Otle lard ca&loraadcxliuder vals Foot Oil.
OJISSTOX CELEBRATEDAWS AND FILES. AT.T. SIZES;
a . -i . . .v. s i ..
ClMrfWrs Sal' i" Ziit Oalv .atlf Cal tfiktl . Hone Mnlc?io t
jjaiest, Improvements in Shelf Hardware
H 5 fif3"aL gyyy W and ltcd Ld,. 2,nc, Small Palau in Oil.
n'm, LtUtox TVWtf ir KkndD
3z&XmyJN' t OO.
, ifp4te 1
3aolJtt Mm 1
I DFfS" CS- O O X
hHr 1 laa 3 is
ad InbhstlKACoUaiu. I:nMlDilr.
STAPLE GROCERIES, Goldeu Gate, Star I SiipojOne Flour
C j i '
a. itojw IWan AIm lahf rai Liter T"cnlaiii am! Hjdrsallr Office t.
Tor Kerosene Oil "We Offer THE PALACE, an6VGuarap,te
it cannot be beat for quality or price; also, THE
VUliCAIi". a good oil and above test:
WOODWARD & BROWN'S CELEBRATED PIANOS
The licprt Goo' l'iatio; tw Organ Co.'s l'arlor Organs
BENSON, SMITH & Co.
all'SSia'aiS Tort Strcel, '
lie'' 1 "ca5?" '
LEI kWm BOQUET.
Cold Drinks foryoung & old
Superior Ginger Beer,
Donnelly's Root Beer,
Donnoliy s Spruce Beer-
- 10c. per bottle
: 10c per bottle
;: 10c, per bottle
Tb Tlrcrs mxr tfcr nrnt ntt4Dt miA JimithiML
btTera tnoTL Tlwy cfeutM and pnrtl the Mood,
I nrhteh rrnslpTS ihrts not cinlrin rrr4nf (trint lSni
J Ei for lnraitd aQ will more rcxdilj quench thlrft
tuni iJiViaUUHf aBJ UCiwciiUBa
! Candies I Candies
Hone tnLt3f Crfcunut sml Craml tl tT !
firth daUIj. Fxaci tdectitra of Imported Ctsdirs.
thwtY Celebrate! SocIod Loienrc. lnt axomxUc
Smoke! Smoke! Smoke!
I Xj Xaailit are the iwt U town, ctTiae and Jetfr Tor
I TtcTKlf. JUarricaa, lUtanx amd HlnxlfT' crl(brtted
VoMitetTobaccP. rot foil aad pln Jin Tiritife of
n sue rocEUia.
AXB AITKUTIIIS B ATE.TI1K
1 i. TTri J o i v uuia,uj ile voKK5 trill de-
41 jisaua usuuias cuun seat-.
JSl. Jj teaianacUanlu oa
U A J
This ie a bill to declare frandalent ami aoiJ
atlemido by defendant toplainUlTof eixty
shaica of the capiUlttoct of tlieHonoltiln lc
Hawaiian la al
Co., a conwrmtianTandcr
$70 rr shar, and alio for an injunction Jo
rctrain defendant from LUof: out an execution
npoo ajodsment for 1,200 obtained Iiy
the defendant against the plamUffat tbeUst
July term of this Coort, for Ibe lmrclnse
money of tbia atocV.
Tbe bill cliargca mai mc "" --
to'b? itatcmtntaHnSae bj
defendant Uiat tbe atock was good, tnarketaWo
atoeV. and a 6nt rate inTcatnjcnt at tbe juice
otTcred, and tbat tbe President ol tbeJce Company,
S. O. Trader. Vbo "was tbe -principal
owner or iu stock, held it at rr (100) and
refnsed to sell forless.
T.. rnolmnt ! rliarrrd to be of the uct
that the stock waa onsaiesble, aiH was by
reason or an expected competition in tbe ice
Taking up first tbo second point. I think it
is proved by the -evidence, that at tlie time of
tbe salo of the stock, April 10, lssl, Ellis
knew tbat the new ice company a abont lo
Mr. Sass, the projector of the company, ho
ssya he told1KUis!laboutiit.ijtttir?;on lo
his goinR to an "Francisco, about tbe last of
March. Also that Wilcox did not kno of it
nntil lis beard of it from Mr. W. 0. Smith, on
April 10, immediately after his purchase of
Was Ellis nnder any legal obligation
to disclose tiis information to Wilcox?
Sy the anthoritics he v. as not. Chancellor
Kent's statement of the law in this regard is
as favorable to tbe plaintiff as any. lie says:
"When, however, the means of information
relative to lacia ana arcumsiancra aucciiug
tho value of Uie commodity, be equally
both parties and neither of them docs
or says anything tending to Impose upon the
other, the disclosure of any superior knowledge
which one party may have over tho other,
as lo those facts and circumstances, is not
is uo breach of any implied conndenco that
one party will profit by his superior knowledge,
as to facts and circumstances open to
tho observation of both parties, or equally
within the reach of their ordinary diligence;
because neither party reposes in any such confidence,
unless it be specially tendered or required.
-Each-one, inordinary cases, judges
for himself, and relica confidently,
prcsnmptSonSfJtTpan llie uflicieScj of
his own knowledgef sUU andIilfgeic&l Ibe
common law affords to every one reasonable
protection against fraud in dealing; but it does
not go to the romantic length of giving
flKfanequenMsot iiidolcnco and
folly, prla careleiindifference JoThcordinary
ana accessible means 6f information " 2 Kent
The possibility of coiupctitiuii in the business
of ice making is one of the cIuiicls to
wbich all business eniurt. aresubfcet Mr.
Sass bad caused to be published in the Dutly
BuUcttn of 31 March, an extended of
ii1? aiding, with the sUlemiut: "Mr. ,Sj63
leares bythe, JUijeJi
l'onicroy sayt, (Sec. '.'01 2 1'onierny tq.
Jnr.) iliat abroadtr duly lodiclusc matcnal
fads rest unm the x.inlur titan uu i lie vendee.
"In crdmarx cunlrutls of wle where liu fiduciary
relation tiisW, anl vblai jib confidence,
express or implied, growing ut ol, ur con
nected witlHl'O is
on the vendor am! thepartiei jrc dealing
with each other at arni'a length, and iho
purchaser is presumed to ba 9 as many reasonable
opportunities for ascertaining all the
facts as any other person in his place would
have hid, then the general doctrine above
stated applies; no .duty to disclose material
ficU known tu himself rests upon the vendor;
his failure to disclose is not a fraudulent con.
There was no fiduciary relation existing between
Ellis and Wilcox. Nor is there any
evidence that Wilcox expressly reposed confidence
in Ellis in this transaction. So far from
this being the case, Wilcox says be was bored
by Ellis' imjortunity and that be made the
oficr to get rid of him, not expecting that it
would lie taken. The parties were at arm's
length. Wilcox was not seeking investments
and was, so to speak, surprised into the sale.
Mr. Justice Story (2 Story's Eq. Jur, Sec.
201) in speakinz of nnduo concealment or
prtseio ten", "It is not every concealment
even of facts material to the interests of a
party hich will entitle hira to the interposition
of a Court of Equity. The case must
amount to the suppression of facts which one
part, nnder tbe circumstance, is bound in
conscience and duty to disclose to tbe other
party, and in respect to which he cannot innocently
bo silent, And in Section 205, "The
question is not whetlitr an advantage bas been
taken, which in point of morals is nrong, or
whicli a manof delicacy would not hae taken.
But it is essentially necessary, in order to set
aside tbe transaction, not onl v tbat a creat
advantage should be taken, bat, also, tbat
there should lie some obligation on the party
to make tbe discovery." Section 207. "The
true definition, then, of nndae concealment,
which amounts to fraud in Ibe sense of a Conrt
of Equity, and for wbicb it will grant relief,
is tbe non disclosure of those facts and circumstances
which one party is under some
legal or equitable obligation to communicate
to the other; and which the latter bas a right
not merely fotm cotiscitatlw but 1 1 de
jure to know."
And I gather from all the authorities tbat a
sale of goods is not rendered invalid if the
vendor has actual knowledge from private
sources of facts or events wbicb arc called
extrinsic circumstances not known to the
other party, which materially affect tho price
tne goods, otory says wliere the intelligence
is not equally accessible to both parties, equity
w ill not relieve, if it is not a case of mutual
confidence. Id. Sec. HO. Sec lairfhir rt.
Organ, J Whcaton ITS, and Mathtvt TS.lSlia,
IS Tick. 18.
The mlc as i have expressed it is subject to
qualification; for if there be any fraudulent
suggestion or representation, then the transaction
becomes tainted with fraud.
On tbo ground of undue concealment, therefore,
I think tbe bill fails.
In regard to tbe statements by Klli, that it
was good, marketable stock, etc., I should sa
tbat this was a mere matter of opinion and as
such is not rclievablo in equity, where as in
this case, tbe parties were dealing with each
other upon equal terms.
I pass now to the principal allegation ojion
which relief is asked for.
Wilcoxtcstifind that Ellis 'aftcrcipitiating
value oi the Block said ihat'Wilder considered
it a first jato investment and would
not sell at less than par. He spoke of him as
being President (of the Co.) and holding most
of tbe ittock. lie said also that he would not
have risked tbe offer be made of $70 per share
if he had known that Wildcr's reason for
nsiug to sell at par was tbat he would not
cause othcrs4a lose by him..
Mr. Wilder testified that ho had frequently
stated that any stocks he as holding that were
good he should keep and if be knew a stock
was not good ho would cot stick bis friends
with il, and this applied to the stock in the
Honolulu Ice Co.
Mr. Ellis in bis ansa cr denies tint be said
lo Mr. Wilcox that Wilder held his stock at
par and refused 10 sell for less but says that
lie answered Wilcox'a enquiry as to whose the
sbsmi were, that tliev were poster's and Wilcox
asked: ''Arc yon not selling for Wilder,
and do yon not think I could boy of Wilder for
less than $63?" Ellis replied that he offered to
sell for Wilder but that Wilder unwilling
to sell for less than par.
Mr. Wilder saya further tbat he never offered
to sell any of his shares in this Co. "Don't
remember ir fcllis offered to sell any for me.
He may have asked me if I bad any for sale.
I have never sold any or offered any for sale."
Ii seems to me that tbe inference from Mr.
Wilder' testimony is not tbat he would not
sril&r Jera than
tbenrworthit least pir. HeWEastmwillingto
sell at all while tbe enterprise was in a condition!
uncertainty. AndlUunV Mr. Ellis
nsed Hie language attributed lo him by Wilcox
and that be intended to conver the idea to
Wilcox that Wilder considered it of that valno
and thus to induce Wilcox lo purchase. Mr.
Wilder says tbat if tbe opposition started, tbe
stock in bjscBtBpany, jBjring.'to the limited
demand for jee in this community, would be
ff lioJaGie as. an 4nreataeBtbut without the
-would 10 per cent, that
he had doubts as to lhejarting of ibe new
company, until Mr. Sass relarnedlrom California,
with lib aaddneryi for ho thought no
man oJa be roolish eoogh lo start a hew
ice machine here.
f ?PuUClUY SaVaM. fi?6V Bniirr.f
ioiUvorderto cinstitnlsnfrand must contain
IheTOrawlnge&eMUciaaentk'' (l) InTfonn
a a statement 01 tact ai distingtusaed from
a mere opinion 12) It purpose, of inducing
lb? oUrer -party tb ait general
being thai a misrepresentation bas inch a
design. (3) Itstmtrnth. (4) Tbe knowledge
(5) The effect
of the misrepresentation, i,,e-,the belief, trust
cod reliacce of tbe one 'to whom it is made.
(6) Its 'materiality. And nnder (5) The party
must be justified in relying npon the representation.
Here the party it not justified in
relying npon the represeatatica if ho actnaUv
rescrta to the proper sneani of ascertaining tie
trnlh,or when be having the pMrtunijfoT
making such examination no 1a cuargcu wiuj
th trrnwrfirfl lie micm uaro oaa, IX uo uw
prosecuted it with diligence, or when tb Wjwi
rcsenuuou ib wwvtiuiiih ---(
within the tnowieage or means oi acquiriaa,
knowledge possessed by boll parties. Bot
where the representation is of
which the party has, or is supposed ttftave
knowledge and the other party lias nojiack.
advantage then he is justified in relying qpoa
I find a noto to Benjamin on Sales, Sec 4Jfl;
.. fntlnti. "Merc statement of 4 verflnr.
either of real or personal property,
tbe form of a warranty, as toils vslu, prjc
which he has given, or been offered for it art
held to bo immaterial," ating:
Medburv vs. Walson, 6 MeU 550.
Brown vs Castles, 11 Cusb. 350.
Veasey vs.l)oton,3 Allen SSI.
Cooner vs. Hoverins, 108 Mass. 70.
iToney vs. Miller, 102 Mass. 217. 1 ',
Williams vs. Randall, C3 Me. 81. ( -
Comer vs. Perkins, 123 Mass. 431.
"Bat the utmost limit of this rale ins been
reached in applying it to fcUlemenlaof.Chc
price paid by tho person himscll."
In this note a leading case inMaasachunttr,
.Vcvffiieryrj; UofttoH, 6 Mel. 216, is incorrectly
slated as an authority to sustain theViow that
an action for false and fraudulent representations
as to the price paid by a third person for
the property in question, can be maintained.
A careful reading of the case will show tbat
an action of on the case was brought,'
not, against the vendor but against third person
who made the false renresentalioosand
the Oonrt say (hat "naked assertions by tie;
vendor, though Known to De raise are not actionable.
When a vendor of real cUtc aTSrjin
to the vendee that his eatate is worth so much,
that he gave so much for it or has been reTosed
so mnch for it; snch assertions though knonn
by him to be false and though uttered with a
view to deceive, arc not actionable. They ro
the mere annotations of tbo vendor, nn which
the vendee cannot safely place confidence and
w ill not excuse the neglect in not examiniii,;
lor himself and ascertaining what tho facts
arc, and hal credit is to be given tu the assertions."
This is qualified later on and tho
Jonrt say that, fraudulent misrepresentations
of particulars in regard lo the estate, which
tbe bu er has not equal means of knowing and
w here he is induced to forbear inquiries that
he otherwise would have made are not to be
viewed in the light of assertions gratis criefaj"
and are actionable."
In Cbojwr vs.Xoreriw? the Conrt say to support
an action of deceit, the misrepresentation
must be of a material fact, not within tho observation
of tbe other party. The latest
Massachusetts caso I have seen is Homer vs.
Pcrlim 121 Mass. 131. Tho Conrt say if the
representation was a mere affirmation or expression
of opinion in regard to the value of
tbe property he is attempting to sell, these
can never be safely relied upon by tbe other
party. But if it was intended to be the statement
of a fact, to be understood and relied
upon as such, the action would lie. Citing
Manning vs. Alba 1 1 Allen 520 where a false
representation was mado not only as to the
value of tho bonds offered bat also as to tho
sales of such bonds in the market at a certain
price, appearing by a public list of sales of
stocks, which w as exhibited as actually taken
place and tbo action was maintained. The
Court eav in this case that "the representa
tion was one which tho plaintiff is not shown
lo bare bad equal means of knowing the
truth or untruth of, ami on which ho might,
w it'uoul imputation, rely "
in JieHTiivv. .UiWer, Cli miun. U. J. savs!
"if false rcprocntatiuii relate to material facts
not witluu the observation of the opposite
party, and are made with ictcntiot. lo deceive,
they are actionable; but if the truth cau
be ascertained by urdmary diligence they are
Ill Xevv Yiuk bUte the law is similarly
held. . Barber 66 X. Y. 507. Judge
Folger saj s "The representation or the value
of the invention was connected with a false
rcprcstntation of .m extriusic fact calculated
to impose upon the plaintiff, lo put him off his
guard and to induce him to give credit lo the
representation of value. It had the effect it
was designed 10 hate. He relied in taking
slock in part upon the supposed jadgment of
other persons who, us he was falsely informed
had taken a stock in the company. This
caso bears a close resemblance to the one at
bar. Ellis represented that Wilder the President
of the Ice Co., and principal owner
would not sell his Elock for leas than par
meaning to influence Wilcox to buy upon Wil-der's
judgment of the value of the stock that
it was worth par hereas Wilder would not
sell at all. In the Xew York case the cellar
mentioned the names of persons who bad
taken stock in the company these nad allowed
their names to bo used as subscribers
for slock and had stven notes for the amounts
subscribed for, upon tho secret agreement
that the notes should thereafter be given op
without payment. Xo exercise of diligence
on tho buyers part would bo likelv to reveal
tn lraud, lor the conspirators would not dis
close their fraud to tho intending buyer,
Whether it was Wilcox's duty to make in
quiries of Wilder to ascertain whether Ellis'
statement was true or not is the remaining
oithcult point to be decided.
It will be noticed that in manv of tbe above
qnoted cases the Court say that the facts mis
represented must be one which the buyer has
bas not equal means of knowing," or a fact,
"not within the observation of tho other
party" or a fact which could not be -verified
"by the exercise of ordinary diligence etc."
The leading case on misrepresentation in
England is Attuood vs. Small 0 Clarkand
(Honse of Lords). Lord Lyndhurst
says "Where representations arc mado( with
respect to the nature and character of the
property which is to become the subject of
purchase affecting the value of that property,
and those representations turn out to bo incorrect
and false, to tbe knowledge of tho party
making them in a Court of Equity a foundation
is laid for selling aside the contract which
was founded on a fraudulent basis." lie
qnotcs from Dobell vs. Stevens 3 IJ. & C. G23.
Here the purchase was of a public house; a
false representation was made by tho vendor
with respect to the extent of the custom, w ith
respect to the quantity of the beer that was
drawn during a certain period. The books
were in the bouse; it was part of the case tbat
tne purchaser might have bad access to them
if bo thought proper but notwithstanding
that circumstance, it being proved the representation
was false, tbo action was sustained.
Lord Wynford says on p. 502, id. "I un
aware that if a person chooses to trust to Jhe
representations and does not make any inquiry
tbat reliance will be sufficient to make out
a charge of false representations as to set
aside tbe contract." If the party thinks
proper to inquire etc. it will be otherwise.
Judge Coolcy on Torts p. 193 says "Where
one in selliug .personal property makes positive
statements of material facts npon wbicb
the other relies, the vendor is held to the
truth of the representations etc." Judge
Cooley however admits tbat there are cases to
In HbtirooX vs. Cfcwior CO Me 578, it was
held by a bare majority of tbe Court that
false and fraudulent representations to a purchaser
of the value of lands as to tbe price he
paid for it etc are not actionable, because the
purchaser is not justified in placing confidence
So alfo in Bithop vs. Small 63 Me 12;
"Misrepresentations cither as to what a 'patent
right cost a vendor, or was sold for by
him, or as to offers made for it or profits tbat
could be mado from it etc. are not actionable."
When it is considered Ibat these
not being specific were not capable of
being verified by the intending buyer by any
inquiry he might make, I think tho case is
not against the view of tbe English caso of
Jairo2's. Small that if tbe representations
be relied upon it might be tho foundation of
01 an action.
The Supreme Court of Michigan hold
that "When a persons sells his
property npon the positive statements of another
of facia and those facts turn nnt to Km
falsely asserted, he is damaged by the false-
nooa ana uie laise assertion has all the effect
of actual fraud." fsonrvs. Coreft 23 Micb
Iu Connecticut, ires vs. Garter 21 Conn. 391
me wjun ucm inn -a representation 01 a
vendor that X. bad offered a certain ,s5m for
tho property and stood ready to give ltiftbe
omer party purchased, was directly calculated
to effect the value of tho property and supported
an action." Here there is no qualification
made and yet tbe purchaser irught Save
ascertained from X. if the representation was
Upon a Careful review nf anrJt T
have been able to find I think tbe
trine is that where the false representation
a material Jact, as uisunguished from a mote
opinion, is made lo a proposed purchaser by
the seller, with tho intention that be shall act
upon it and be in fact does act npon it to bis
iojory, the contract of sale can be set asids'ln
equity, even though the purchaser could by
diligent inquiry hava ascertained whether the
representation was true or not.
Having arrived at this view of the law, I
think the relieTprayed for ought to be granted.
Decree accordingly. . ,
A. S. Hartwell for plaintiff; F."M. ifalcE for
Hoooiulo, March th, 1885.
Supreme Court or Uio
InBaauo, January Tena 1 888.
Siircii Swot vs. B. H. KiuaXasn.
JmH,C.J. JfcCWJy.J. Aut,H,J.
Appeal by the defendant from Decree of
the Chancellor, nrjon a. hill in fwinitv.
whieh alleges a jartnerahip between th
jwMuwawiMuu uujiBXU paaooaT PHfimauq
Uanof thoTJBrtllErshiD.'ricconiitiiitr. settle- I This was their final act and must determine
. - . .i . - . II. ... ..- ..- t L-
mcntsd general rcuer. xne uolense sets i mo nguia oi uieparues. ano language 01 me
tot tnattBo rjlaintm Eastained too rela
tionship of an. ranployoonly and denies
juusk ui uiu wu reucu un uy piaiuuu.
upuji uiu oiiaenco 01 rrcom, niter Hearing
Bigarnent 'wo are of opinion that tho
decree joOb Chancellor sustaining tho
plaintiff's bill and ordering relief
should bo sustained. Decra tflrmed.
Idnney&Peteraon for plaintiff; S.B.
Polo A HolftVahi Vi for defendant.
March 13, 1SS5.
SaiTernr Court el the Hawaiian Islands.
u .1 unwary Term, 1000.
It. A. Mactie vs. H. Hackfeld & Co.
miyJ ttjatltfMl, JTerr. 3, ISM, IA jrny httnj
Tbe plaintiff who is a resident of DrcgLom,
Scotland, claims of It. Hackfcld, P. Isenberg,
H.TY. Schmidt, II F. Olade, J. F. Ilackfeld
and J.tX Pfiuger doing business at Honololu
Wider ihc 'firm name of II. Hackfcld & C,
the, sum of1 eight tbonsand, one hundred and
sixty five 77.100 dollars for so ranch money
Indand received by defendants lo plaintiffs'
use, according to an account annexed to the
The defendants plead the general issue.
The plaintiff introduced in evidence upon
which hit caso is founded, a proposition in
writing dated "London, July 21, 1833 from
J. C Pfiuger and Paul iMnbcrg nf the firm of
U.Uckfeld& Co, of Honolulu, to K.A.
land -accepted by him, 111 which tho
defendant' offer in sell to MacGe all their interest
or every sort iu the "Kilauea
Company" and current account, "including
alt debts dee us by your son Robert (K. A.
Macfie Jr.) as tlieao stood on the 1st instant,
for tho sum of One Hundred und Fifty Thou,
sand, dollars &c Among other thing ibe
agreement recites, "Your acceptance of the
foregoing hands over to you the 151 shares
now held by ns and tho leasehold intercut
appertaining to the hall-moiety acquire.! by
your son. and releases tho "Macfie holdings
entirely from all liabilities anterior to July
1st, whether by mortgage or otherwise, so as
to give a fresh, clean start w hich we w ill do
our utmost to make prosperous by onr advice or
assistance if desired." It further stipulated
that "This proceeding is to bo communicated
to our firm at Honolulu by mail and cable ns
soon as possible: Should however, our interests
have been sold by our? firm before the
receipt of the cablegram, this transaction will
be null and void.
Just "before the receipt by tho defendants id
Honolulu of the cablegram com eying notice
of this transaction, they had sold their interests
in tbo Eilauea Sugar Company toWm.
T. Horner of Labaina.
After considerable negotiation extending
overoao time, Mr. Horner agreed to sell his
interest to Mr. Macfio (plaintiff) in rder that
the firm might carry out the "London Agreement."
The agreement of salo is dated 10th
January ISSt. It stipulates that Homer is
to sell to MacSe his interest ii the Kilauea
Sugar Go, and that in consideration of said
sale and of the London agreement, Macfio
shall pay to H. Uackfeld & Co, of Bremen one
hundred and fifty thousand dollars (120,000)
and interest from 1st July 18S3: and Macfio
is to pay Horner $25,000 and to II. Uackfeld
&Co, of Honolulu $62,910.02 adding thereto
31S00 or thereabouts, representing the amount
of drafU now extant and not yet entered in
the account current between Uio Kilauea
Surar Co, and 11. Uackfeld & Co, dated from
and after the 1st July 16SJ. and subtracting
therefrom 50000 or thereabouts reprLSeutiu,
tlw credit duo tu the iaid account for boiae
1063 bags pf sugar received tn account by
U. Hackfeltl & Co, from the Kilauea Sugar
Co, and 1 nt entered upon account current. It
was also agreed mat an necessary insiniintiu
and releases were to be executed and deposited
with Messrs Bishup & Cm., Bankers as an
escrow to be delivered to the respective panic
upon the pajment of lite $150,000. Other
stipulations appear which it is not uectssary
to recite, and tbe agreement closes: "It is
lastly agreed that all disputed items iu the
account current herein mentioned shall be
submitted to arbitration, but nothing herein
contained shall imply that any of tbo pay
ments hereunder to be made shall be put off by
reason ot sneu disputes but Iho saras shall be
made as though no dispute existed."
On tbe 15th January I63I, Iho formal deed
wis signed by all Uie parties: Homer, Macfie,
H. Hacked cC Co, and Macfie Jr.
The clause bearing upon the question beloro
me, is as follows: "And the said parlies of
the third part (II. Uackfeld & Co.) agree to
and with said party nf the second part (It. A.
Macfie) that tho above salo shall Like effect
as far as they are concerned as of July 1st
A. D. 18s3, according to the terms nf au
agreement made by and betw cen said parties
in London, dated July 21st A. D. 1SS3, and
tbat all accounts shal I bo settled as of said
July first; all sugars which may have keen
shipped from the plantation of said Eilauea
Sugar Co, on or before said July first as well
as all sugars which may haro been received
by said parties of the third part at Honolulu
and are net accounted for in their quarterly
account of tbat date are to goto reduce the
balance due them of that dale; wul all
aiul liabilities nf frml Kilauea Suqar
Vompany existing anterior lo July flrsl A. 11.
1SP3 uheOier by viortjaqe or otiTttUs are to
be assnwd anil borne bv snul parlies of tin
thinlpart, ami saidpartics of the third part
ao Acrwy assume the same; all amounts which
bare been advanced by the said parties of the
third part to said Kilauea Sugar Company
since July first A.D. 1SS3 for tbe use of the
Company and none other are to be paid by
said party of the second part; and said parties
of tho third part hereby acknowledge the receipt
from said party of tbe second part of Iho
sum of sixty two thousand nine hundred and
forty six 12-100 Dollars, being tho balance
appearing in favor of said parties of the third
part on this dale as charged in their acconnt
current, less sugars received, lint said account
current andthc payment qfsaullast named sum
on account thereof, are not lo Ic taken as final,
and any disputes arising in regard to said ac
countj or in regard to the transaction covered
by tins indenture arc to be lefcrrcd to arbitra
At the same time Macne Senior and Macfio
Junior and the Kilauea Co, by W. T.
Horner President, released and discharged U.
Hackfeld &Co, of all manner or debts, claims,
demand and liability whatsoever in law as
Well as in equity which they now have or
wmcu ma) licrcaitcr accrue to mem
by reason of any matter, thing,
transaction or business from the beginning ot
Ibe world to the date of these presents, ex.
cepllmi, hoKCrcrfrom this release sucJi matters
pcrtaminq 13 the book debt due from the Kilauea
Sugir Co, to said II. Ilackfeld it Co,
from and after the 1st day of July 1633 anrf
ucb aiearas as may licrcuflcr oc maac btiuecn
tliem .II. Uackfeld d Co) ami the undersigned
in conformity witli a certain contract of sale
bottcccn parties hereto dated tltel&Otday of
Tbe plaintiffs bill of particulars is composed
mainly of items of indebtedness by the Kilauea
Sugar Company prior to 1st July 1883,
and wbicb were paid by U. Ilackfeld & Co
as agents of the Company, and in the Erst instance,
charged in the accounts current and
repaid by Macfie in tbe settlement of 15th
January 1881, and included in the sum of
$62,910. One item will suffice to illustrate
tbe general character of the transactions. Tn
the account current there is charged as paid
by H, Uackfeld & Co, July 10 1683 draft
number 121 favor of Keaka, for $119,50. This
draft was drawn bythe manager of tbe Ki
lauea Sugar Company June 30, 1 833 favor of
Aeara tor balance ot contract lor hauling cano.
This is clearly an indebtedness of the Kilauea
Sugar Co existing anterior to July 1st, and is
what Messrs Uackfeld & Co, bound themselves
to repay. Tbe language of Uio deed
of January 15 is conclcsive on this matter.
They covenant tbat "all indebtedness and
liabilities of the Kilauea Sugar Co, existing
anterior to July first A. D. 16S3" are to be
assumed and borne by them, and tbat they
do hercly assume the same," These words are
susceptible of but one meaning; and the meaning
is not tbat whatever sums of money have
been actually paid by H. Hackfeld & Co, on
account of the Kilauea Sugnr Co, are to be
boms by them; but they mean tbat H. Hackfeld
it Co, agree to assume and bear all tbe
indebtedness of tbe Company existing prior to
lit July. And if Macfio bad borne any of
these in tbe amount of $62,910.02, paid by
him -without prejudico in order to facilitate a
settlement of tbe title of the plantation, he
was to have them paid back. The language
of the deed is that tbe payment of $62,910 02
is tha balance appearing iu favor of Messrs
Hackfeld & Go, trot said account current and
the payment of said last named sum on account
thereof "are not to be taken as final," and
any disputes arising &c, are to be referred to
arbitration. No question is here mado of the
right of the plaintiff to sue at law to recover
these sums in default of submitting the matter
Tbe previous agreement of 10th January between.
Horner and Macfio in which ,H.
& Co Join, is not so specific. It would,
doubtless, when considered alone, not bear
tbe interpretation tbat liabilities of tbo Kilauea
Sugar Co, incurred prior to 1st July
I6S3 were to be borne by H. Hackfeld & Co:
for the payment of $62,91 0.02 is subject only
to correction by adding-drafts dated from and
after 1st July 1653, to the amount of $1800,
or thereabouts and by deducting the proceeds
of some 1063 bags of sugar; abont $6000.
Tho views of the individual members of the
firm of JL Hackfeld & Co who testified as to
their, understanding cf the final agreement
with tbe language nsed in this
agreesacnt of January 10. But it was only
a sjreement to sell and was succeeded by
the Wry! iaatrument of sal of January 15.
deed is plain and unequivocal and free front
ambiguity and must no interpreted tjy uie
Court according to its own terms, having no
refcrjnea tothe parol ctidence whicB was offered
showing a different understanding by
some of the parties.
Tho release, executed contemporaneously
excepts from its own operation, "such matter
pertaining to the book debt dne from the Kilauea
Sugar Co, to H. Uackfeld & Co, from
nod after uie 1st day ol July 1883, and such
awards as May hereafter be mado between
H. Uackfeld & Co and Macfie in conformity
with tho contract of sale bf Jabuary IS. Thus
the right which Macfie reserved to himself in
the deed bf January 15 to recover sums paid
br him In the settlement, being indebtcdess
of the Kilattea Sugar Co, existing prior lo
July In 1533 was excepted in tho release
and'hc "has not. acquitted it lo the defendants.
Having no doubt as to tho principles of law
involved, I think judgment must be entered
for plaintiff for tho suni declared on as setfoith
in the b'H "of "particulars far as and"
mg the item Kcakacl 19.30 111 all
Of the remaining items, I (lisalluw "Error
oc Invoice Dx. $75." as being no error; also
item p iid Cecil "Brown $25 of which there Is
no proi order No.-119 paid by 0. W.
Macfarlauo&Co.'ftr" $40 and not recoverable
in an action for money had and received
by tbeeo defendants.
Inlcrcslis allowed at 9 per cent, per annum
01. alt lleniK from time of payment of each to
tit, laS3, and afier this lo the 10th
Jnun iry 1SSI at 3 per cent, per annum, this
being the interest which -was charged to and
paid by tho plaintiff in bi settlement; and also
iutcrest on tho wholo sum recovered at 9 per
cent, per annum from tho date of demand
which is July 31, 1SS1,
The hill of particulars also claims items
amounting: to 8100, being Tees paid to counsel
by II. Uackfeld & Co. subsequent to 1st July
1833 and claimed by plaintiff as being improperly
chargeable to tho Kilauea Sugar Co.
The case was a bill in equity by K. A. Macfio
Jr. vs. Horner and the Kilauea Sugar Co., its
object being to compel Horner as iho holder
of a debt on ing by tbo Kilauea Sngar Co. of
w hich Macfie was surety lo exhaust liia remedies
against tho Company before resorting to
him, Tho Kilauea Sugar Company was
and tho prayer of tho bill was that it
might be ordered to trivo plaintiff indemnity
and ho enjoined from selling or disposing of
tho property until it had provided indemnity
etc. From this statement it is sufficiently plain
that the Kilauea Sugar Co. bad a substantial
interest to defend and which required tho aid
ot Counsel. As I find that the expenditure for
counsel was in tbe interest of the Kilauea
Sugar Co., I disallow tbeso items.
Judgment as above.
F. M.- Hatch for plaintiff; Paul Neumann and
Smith & Thurston for defendants.
Honolnln, March llth, 1685.
Sapremo Court of ths Hawaiian Islands
In Banco- January'Term, 1885.
"W. C. Acni vs. Kauwa et al.
M, C. J. JhCMlty, J-. Aiittu, S. Opinion ly
This is an, action of ejectment.
Tho plaintiff was the grantee of tho
heirs of the patentee of tho land by a
recorded deed. Tho defendants' claim
under an unrecorded deed from tho patentee
dated in 1807 to tho defendants, constituting
n uhni" (firm), and show that
some of tho defendants live and aro sap-ported
on the land, and cultivate parts of
the samo "vearlr. and fence what they cul
tivate; and that thero aro two houses an
tho land which hae stood a long time.
Tho plaintiff claims that this unrecorded
deed is void under Sec. 1262 of tho Civil
Codo which provides that it 'shall be void
against any subsequent purchaser iu good
faith and for n valuable consideration not
having Actual notice of such conveyance.
vfucfce. conveyance shall bo hrst duly recorded."
To make the second deed hold, the claimant
under it must purchase in good faith,
for value, not having actual notice of the
The New York recording act provides
that "an unrecorded deed shall be void
against a subsequent purchaser in good
faith and for a valuable consideration of
the samo real estate or any portion thereof
whose conveyance shall bo first duly recorded.''
In Tuttle vs. Jackson G Wend 213-27, tho
leading caso in the Court ot Errors in New
York, decided in 1830, under the latter sta
tuto, it was held that actual possession of
tho land sold under an unregistered deed
is constructive notico to tho purchaser and
imposes upon him tho duty to inquire as
to tho rights of tho person in possession,
and that as to him tho purchaser cannot
have tho benefit of the recording act, because
not deemed a purchaser in good
faith for value. This decision has been
followed and never since questioned in
See Broun vs. VoUening &l N. Y. 7G. To
sustain his view the Chancellor cites tho
opinion of Chief Justice Parsons in Xor
erois vs. Wiigety 2 Mass. 508. Thereafter
however, and prior to the caso of romroy
vs. Stecensll Met 244-7 cited by plaintiffs
counsel decided in 1646, a statute was
passed in Massachusetts -which expressly
provides "that no conveyance of real estate
shall be valid and effectual against any-
other than the grantor and his
Eerson devisees, and persons having
actual notico thereof, unless it is mado by
a deed recorded as the statute directs."
And under this statute it was and is held
in Massachusetts that no implied or constructive
notice of an unregistered deed
will give it validity against a subsequent
In tho G "Wend. 257 id. Chancellor Wal
worth refers to Doe vs. Alsop 6 Barn, and
Aid. 142 decided under tho Middlesex He-
iristrv act 7 Anne. Chan. 20. where the
holding was like that in tho Massachusetts
cases, and says that tne act is imperative
that the conveyance shall be void atrainst
any subsequent purchaser, and that the
words bona fide purchaser aro not used in
the act; and refers to a similar decision
in "Virginia where the law and the decision
were subsequent changed.
See also Daniels vs. Davidson 1G "Vein
2G8, 17Vesey433, where the New York
doctrine is sustained. In equity and at
common law -without reference to special
statutes; and, it seems tons, upon reason;
good faith requires a purchaser of land to
take his title, subject to the claims of parties
in possession when he buys. Under
our statute if the party in open possession
is unable to show actual notice of his unregistered
deed to a subsequent purchaser,
his possession is constructive notice to
such purchaser of all his rights, and he
cannot be disturbed therein.
In the case at bar tho land was agricultural
land. Of such land, the possession
as shown, under a. deed, conveying tho
whole, is sufficient to constitute constructive
notice1 of the defendants, rights tothe
whole by many anthoritics both here and
in the United States. See Jfaule vs.
Sugar Co 4 HaVn 637.
We have lately fully considered tho
nature of adverse possession of similar
lands in this country and fully examined
the line of authorities cited by the plaintiffs
counsel under tin? point. We do not
deem it necessary to re-examine the same
now. See Mahukaliilii et. al. vs. Hikaa
lani et. al.
For theso reasons tho exceptions are
W.B. Castle for plaintiffs; F.M. Hatch
Honolulu, March 10, 1885.
Just Arrived !
per "Date of Aterconi'fonnLlTfipooI.
AJST32 DOH. SlTsTI x
ONE MILE OF
Light Portable Railway Rails,
10 Ibf. ptr jnft nd 3) Inch xaajce with
AND (OUGHT SUGAR CANE WAGONS
von txxu avrvm.
N D. This Rail war 1 aaluble for Animal Power.
ALSO FOB SALE
Straight Steel Ralls, It lbs. to the rsrd
For tie workin? of 'iltttn Join Fowler Co. nU
trtr and locomotirefl, tbe nnderilned be; to refer to
now tn fall opert!oir
W h. ti UK tit. ot
O W. If ACVAHLANE & Co
10J$ Azestf fori fat Fowler A Co
SOUTH KONA, HAWAII.
TIIE JlEfiH TO
X iDform tbe Pablle that Us Bouse,
naieaiTo miles irom neajaaexu liar, at sa deration
ef l.juo feet, la again ready lo receive vUUorf .
Itorses be readrat tbe Iao4iBrcr tboscwbo
onlcr then. BATH I10CSE In connection wllb tbe
Soard. 47 jpor Week,
UMffm A. A. TOBB.
SMiUasWMMillsWM ssMMIlia tlliTu 1 If fQTl.BPl
1 .'.j. ' ' " " ;?ISSfH8K
M 3 " "'
rfinural SUmtrfctnuiits. llilfial
.aaEiHBSssssssaaLissssssssssiaBinL. 9 ,m
A jr sssssssaisssssssasisssssBPIiilsVi M '? ..
jgMz .. ' 1 1 '' '?jHk !'
afey rrivntb sfVSA t 3P
jBsy a Oraar 8Txtr, Saj riuytaco. CUt. ' t yM -4 , Ji?
wS. .M envneaied tram, tit wjsttsa tor Uftv '"""" fer7!! if A
lga at onets Ills ortoloo nxts noUUnff, an nur nra fatnr mtaennaad I I 1 HW H
tCBaTjlf .h.rn III I I II I I II I
1' Si la phyddta won ijtct ht wrxZZZZvrSZ lPMf i ,
Mft H. OWwlAluo wb rmkMw ilW; Ifl Iff
PUTI l oL Th Dorroii 4 ami jUxpvrlnc mate fcM K9S3Bhi et ,,
tTjTra pptnltvi of nirmt lpiprtata - f
KM M m -"IB -
Wm Mai uCTMt BiadenUafa Cmes tfbkcb tuir tfid ta otw m "l7;' L"fc;f 38 I ?,,,
.im.. :acg3etfaiJytrfi.tcd. lini 1 1 ii i im nil iii 1 1 ii iii I iii 1 1 Ii 9 I iiiiii i ii i ff" iiiW
H catOiwUrura.irtgtiTwi. cerirrtta'TnBnir "
Vb M. UESirS MJHDtBfulCEHMJll GmCOIaTTOH 'M - JL
J TynnaapallT prrttna all rwutaral Rnnw from Ox mtm gjjj7 l .
toaea Uu iMrrca. tniwUim iho iriBwIn eht4 ut ff ''Vf' f
SI wasl. tnTbronln uw.Twbnfc sraUm.aad nstorca ta sf ' .'- i ' v
m CllrtKltolleIUndllpptae. M 5a ( J
w i ihwMiiwiiiimiitirfwwrfam c iim.i, m av -5
ijij5Ma, J0mmo,mwh ttoMAwwiM rtoxrmtkxuK.e f.
VKan.iiHasTiicrrArf.iui.tt.. ,m. iv mm' If
vWIKV i"I'riwnrf,wrtfiifriv mEmwMmM!?& i4
lAwvV ttm trnnn. CMMHMM.I4 WmwMmmwT
SwlvV Sr'l.l'"W.HIIWllMrtWTtWHIHW,rtW ltM 9MMMMMMJ
WaVVv' -1 !' i iatt s44w ,t. , lit dlaiV t3
Ma r. CMaibtaSM,BMiKujb oaMUMi 3BW
w uisis onrcn miy. faujar.at J j
GROSS GUT TOBACCO
Wo Bukes & Son,
FOR PIPES AND CIGARETTES
BEST m THE MARKET
Va7jC j'mM'z '"' 'j ""'rFTifri
JLBBSBCsWjfcSjgr ,,S0fla9 CD
tf? aBBsllHBVBa3BISWBlHHBIHSlSBISBISBISBIsl t
At the Old Stand. No. 8 Kaahnmanu Street,
TiH, GOFER k SHEET 1E0N WGBKEil
PLUMBING, in all its branches;
Artesian "Well Pipe, all sizes;
Uncle S.1IH, Medallion, Richmond, Tip Top, I'nlaco, Flora, May, Contest, Grand Vrize,
y, ineen, i ansey,& Aznij.iuuiKEB,aiixaai.B&?u3riiuoK,
. Chattel QaavNlmhla. Inwoqd and Ijanndrv Stove.
anges, Granite Iron Warty uckel Hated and Flam ,
Galvanized Iron Water Pipe, all size's." and laid on at
Lowest Hates; Cast-Iron andOLead Soil Pipe,
House Fupnislbing' Goods, all kinds;
HUBBEU SlZia AJiD GUADES;
Lilt and Force Pnmpn, Cistern l"nm. Iron, b'ttoet Copper. Sbtet Lead,
Lead I'ipo,Tin Plate, Water Closet, Marble SMbi andlSoU, Ennnftted Wash Sti
HOLLISTER lb O
A large Invoice of the Celebrated
Chandeliers, Lamps, Lanterns
VRUBSliN! TRUSSES! mu&gjsS
CE3LLUL01D TRUSSES U
Direct arjroxzx tlio Factory.
We Have-Especial FACILITIES For Adjusting TRUSSES.
Hollister & Co.,
Cor. Fort and Merchant Sts., & 59 Nnuann St.
UJMtiil&'l f lifUlEi.
!'(7 B E
f - 5T..
- . 4.t
" v'r A.
HOLLISTJ3B & CO
Have Just Received the I argest
LOT OF PERFUMERY
E1TER LXI'OIITED IST0 THIS KINCDOJI, COHERISl.Sa
Over Fifty "Different Odors of f.he Celebrated
Odor-Cases, IPaxicy BoxesrBottles, &c,
Hollister & Ob.
ja.3a.ts for ESLiaasca om
SI JTuuaau gt, Cor, and Fort and Meichsnt St