Newspaper Page Text
THE PACIFIC COMMERCIAL ADVERTISER. MARCH 29. 1884 SUPREME COURT IN EQUITY. liKioni: McCui.lv, J. Lyman S. Thompson and Jamk YV. Tiiu.Mr on, Plaintiffs. The Hai.awa Si-iK Company, De f end a vt. The bill recites that m the J.jth October, 1870, Lyman S. Thompson, one of the plaintiffs with T. 1. Tisdaie, became the lessees for a term of years of certain lands (and a suar mill) in Kohala, Hawaii ; that in February, 18S0, Thompson assigned his interest to Tisdaie, and that in Feb.. 18S;i. Tisdaie assigned the lease and remi?f! to rertain persons who have been incorporated and as such corporation are the defendants. That banning with October 27, 1879, sun dry contracts were made with Tisdaie A Thompon, ai:d later with Tisdaie, by sun dry persons to plant cane to grind at the Ualawa Mill, all of which contracts were successively aligned with the mill property and on the planters side passed by assign- KientH to the complainants. A particular de scription of the contracts and assignments will be given below. The bill alleges that by reason of the.-e assignments the defendant corporation holds that the complainants art bound to plant, cultivate and deliver cane and ratoons as prescribed by the contracts between the original parties, whereas the complainants deny tiiat they are so bound. That there are many parties having distinct rights or interests in the matters and things here involved which cannot be properly de cided by action at law, and that only a Court of lenity can determine whether the com plainants arc bound, and to what extent, and can enforce and regulate the execution of any obligations. The bill prays for decree that the defend ant's claims are without foundation in law or equity, and for injunction against prosecuting the same or bringing actions at law or sHits in equity for non-compliance or for specific performance, or for further re lief. (The Plaintiffs' brief and Defendant's brief follow.) BY THE COCKT. The Court is asked by both parties to give an instruction of its views upon the effect of the contracts in view of the assignments which have been made of the mill property and grinding contracts on the one part and of the planting side of the contracts on the other. The proceeding may be treated as an amicable one to obtain construction and prevent future litigation. I do not understand that either party is charged by the other with having yet vio lated its obligation towards the other. The defendant holding the mill property is Nready and anxious to take the cane and ra toons as contracted for with the plaintiffs Assignors and the plaintiffs have not yet iaken them to aay other mill. I am of opinion that the plaintiffs prayer for injunction to restrain defendant from prouccnting or bringing actions at law can not now be granted upon "the mere appre hension of fears of future actions." High on Injunctions, p. Gi neither can there be -an injunction against suits in Equity, Id. p. 15, 32, 61. Cpon the question of the assignability, or not, of contracts on the one part to grow cane, and on the other to griud it, as being withia the description of contracts made upon personal choice of the parties respect ively. There are certain strong and reasonable considerations why this view should be taken that hiich contracts are not of assign able character, i: that view can bt? supported on principle and by authority. It is u sup poseable case that a sugar mill be otablish- ! cd that shall be entirely dependent for its i business ou cane planted on contracts with its owner, and that it be established on the j faith of such contracts made previously to J its establishment. A large amount of capi tal is embarked, and must be held invested for many years. It would be. an unfortu nate position if the owner of it could not sell to the other parties, could not alienate to a corporation, or that upon his death, the contracts fur cane upon the execution of which the prorit and the value for the mo.t part of the buildings, machinery and every thing constituting the mill plant, L.uiid be come invalid. io of the contract to plant cane it involves a large outlay. I take the case of it being entirely independent for re alization on grinding at the mill with the owner of which it contracted. It would be equally unfortunate if a change of ownership was for any reason desirable or necessary, or made by act of lav. or by act of God, through death, that the property might be come of no value, in the hands of assignees or heirs. Lut 1 have no doubt on principle and au thority that such contracts may be assigned on both parts. On the part of the mill owner the contract was to transport the cane from the field to tho mill, and there to manufacture it into sugar and molasses. No part of this can be supposed to be done by Dr. Tisdaie who contracts for it. It is done by his employees. One of the most important of these is the sugar boiler. Yet it will not be claimed that the con tract, contemplated that the sugar boiler then employed should be retained during the entire term of the contracts, or that Dr. Tisdaie was not at libery to make such changes as t him and a- to any of his employees who must execute tho work, m he saw rit or might be necessary. In saying this I do not overlook the choice, the selection for personal qualities of such mill owner, by the cane planter, which might have it influence in the rirst in- i j s lance. i Vet it in reasonable to hold that choice I must be made subject to the contin- gencies of a change of ownership in the course of a term of years. The plaintiffs on this point cit the lead- ing case of Ilobson vs. Druniniond, 1 U. and Ad. ."03, wherein a contract to furnish the defendant with a coach for rive rears and keep the same in good order, was held not assignable. In a recent case, Kritish Wagon Co. vs. Lea, Law lleports, 2 li Vol. 5, 149, Jan. 13, 1880, the Court per Lord Cockburn, C. J., say of that case: "We entirely concur in the principle on which the decision in Iiobson vs. Drummond rests, namely, that when a person contracts with another to do work or perform service and it can be in ferred that the person employed has been selected with reference to his individual skill, competency or other personal qualification, the inability or unwillingness of the party so employed to execute the work or perform the service is a sufficient answer to any de mand by a stranger to the original contract of tho performance of it by the other party, and enables tho latter to treat the contract as at an end, notwithstanding that the per son tendered to take tho place of the con tracting party may be equally well qualified to do the service. Personal performance is iu such case, the essence of the contract, which, consequently, cannot in its absence, be enforced against an unwilling party. The Court saying that the principle did not ap ply to the case before it, says, while fully ac quiescing in the general principle just re ferred to, we must take care not to push it beyond reasonable limits. And we cannot but think, in applying the principle the Court of Queen's Bench, in llobson vs Drummond, went to tho utmost length to which it can be carried." Droiin v.. the Mayor of New York G3 N. Y., 17, supports the assignment of a contract to sweep the streets. of the city, the Court saying, "Parties may in terms prohib it the assignment of any contract and de clare that neither personal representatives nor assignees shall succeed to any rights in virtue of it or be bound by its obligations. Cut when this las not been declared express ly, or by implication, contracts, other than such as are personal in their character as promises to marry or engagements, for per sonal services requiring skill, science or pe culiar qualifications may be assigned and by them tho personal representatives will be bound." The observations made upon the assigna bility of the contract to grind cane will ap ply with equal propriety to the contract for growing cane. It is a common business, the most prevalent agriculture- of this Kingdom. Perhaps one man may cultivate better than another, but there are no score t3 iu the bus iness. The cultivators may be employees, and are liable to be changed without affecting the force of the contract iu anywise. (Quotes from Monsell v. Lewis, 2 Den, 221). In contracts of this kiud we are consider ing the interests of both parties are in unison, for it is equally the interest of the cane planter to produce good cane, of which he is to have one half the proceeds, and of the mill owner to make the most and best sugar, of which he receives the half, so thai both parties are bound by the same interest to the proper performance of their contract. I hold, therefore, that the contracts do not come within the c'tu of those which cannot be assigned. Wcausc depending upon per sonal qualities of the original contractors. It will b een further that they have been expressly made assignable hy their terms. (Contracts between planters and mill owners arc here quoted at length). My view upon these contracts in respect to several points raised, is that the cane planted, and that the ratoons grown upon the lard of the mill owners, rented from them, is bound by the contracts. The as signee?, are in the position of tenants, bound not only to render tho three dollars per acre, but the cane and ratoon upon shares to the lessors. This rinding is limited in its appli eotion to the cine and ratoons now standing on the leased lot of 15 and 40 acres, without extension to obligation to take land or plant future crops. The contract of J7th October, 1871', calls for "not less than 10 nor more than 50 acres to oe planted." Deducting the fifteen to be furnished by the mill owners, there was not less than 25 nor more than 05 acres planted by JJutlcr in the district of North Kohala for the Halawa mill. I am of opinion that the asigners of this contract are bound to deliver the cane of the minimum extent of the crop of cane or ratoons which has been planted or grown in pursuance of this contract, and passed to them by the assignment. Such is the most . direct interpretation to be given to its terms, and I see nothing to support any other view. (Contract with Chapin and Thompson by Tisdaie and Thompson here quoted). As to this contract, one of the original makers, L. . Thompson, is one of the plain tiffs. The assigncrs of the grinding con tract, hold themselves ready and demand performance. Having above expressed the opinion that uch contracts are assignable on the mill art, I further see no reason why the substitution by assignment of James W. Thompson for Chapin affect the obligation of the contract upon the two plaintiffs, or either of them. (Questions of the construction of the ex tent of the contract are raised. ) lv the common rules of construction the j intention of the parties is to be gathered j from all that thev say upon any subject. ; Taking their expressions together, the most direct and consistent meaning to be given j them, L that the mill is. secured a certain I area of plant cane every year, and that the I planter mav irrow his ratoons to the extent he pleases, but is bound to deliver this optional quantity, whatever it may be, to the mill, and the mill is bound to grind the same. The second question of construction is as to the quantity of plant cane for which he plaintiff's are holden. By one stipulation it is to be the crop of not less than 75 aeies, and not to exceed 150 acres planted every year, and by another they are bound to de liver all that they plant on certain leased lands mentioned, and on all other lands now leased or held under agreement for lease. There is no evidence to show that the area of the leasehold by the contracting planters at the date of this contract. I shall hold that the foT?e of the two stipu lations taken together' is that at least 75 acres is to be planted in cano each year, but that if more is planted on these lands the mill, is entitled to it and bound to grind it up to tho extent of 150 acres, the indefinite stipulation of all tho cane which may be grown on the lands being controlled by the definite maximum limit. What is known as the Patv contract was made January 1st, 1880, between W. J. Paty and Thompson and Tisdaie their heirs and assigns, for seven years. The agree ment is to plant and cultivate yearl in the district of North Kohala, Hawaii, on land owned, leased or controlled by Taty not less than twenty-five or more than forty aeros. The Paty contract was assigned to Butler and Blaisdell, August 25th, 1881, and by them assigned March 1st, 1883 to the plaintiffs and by the same assignments also were assigned the leases of the lands held by Paty of which a description is given from which the premises may be de finitely ascertained. There is a brief sup plemental contract of date December 6th, 1882, between Butler and Blaisdell and T. P. Tisdaie in these terms : It is mutually understood by the undersigned that Jj. ?nd B., plant in 1883, 40 acres of cane, B. and B., agreeing to furnish 15 acres of land in field raakai mill adjoining Dr. Wright's store. It is further understood that in lieu of the balance of sixty-five acres that B. B.'sand two cane rights call for, they have the priv ilege and agree to ratoon all their plant cane now growing. , The defendants' Counsel contends that this supplement must be hold to refer to tho Paty contract and the Philip Butler con tract. I think it cannot refer to the B. fc B. con tract of October 1. 1881 (1) because that plainly provides that ratoons may be raised, and therefore requires no new consideration to givo that privilege, (2) because the 05 acres spoken of would be made by the sum of the minimum 25 acres of the Paty con tract, and the minimum 40 acres Butler eon tract, (3) and there were no other contracts between the parties to which reference could be made to which this specification would conform. I therefore rind as a fact that tho supplement qualifies the Paty and Butler contracts. And I also rind that the plaintiffs are bound by the arrangement to deliver the cane and ratoons of the Paty contract plant ing, a qualified by the supplemental con tract. This takes the minimum amounts of the two contracts to which, it must refer and, stipulate for the ratoons of the plant cane then growing which must be taken to le f the previous planting under the Butler and the Paty contracts, and not relating to the 40 acres therein agreed to bo planted in 1883 now. as has been observed to the ratoons of the P.. A B. contract of October 1, 18S0. I believe I have now covered all the mat ter presented for adjudication As both parties agreed in argument to ask simply the intimation of the Court upon the force of the contracts as now held by assign ments, I will not, without further hearing, make any decree. Messrs. Hart well and Preston for Plain tiffs. Mr. F. M. Hatch for dnfendants. CORRESPONDENCE. Kditcu: P. C. A. : Occasionally it is a feeling of pleasure to our community to read extracts from foreign shores about our Island home. The following article copied from a San Jose California paper and writ ten by a gentleman of culture on board the Alameda who recently took his departure from here is well worthy a rejroduction and our thanks are due to Mr. L. C. Abies our fellow townsman for his kindness in pre sen ting to us the following article: Tito Islands. LEA Vi: -TAKING OX STEAMER DAY AT HONOLULU. Ed. Mercury: Tourists from the Coast generally visit two or more of the Islands of the group taking in the great extinct crater of Haleakala on East Maui, and the active volcano of Kilauea on Hawaii. During the week preceding the sailing of the California steamers, the little inter-island vessels are crowded with returning tourists and all about the wharves is life and bustle from noon un til 9 or 10 o'clock r. m. Streets choked with hacks and carriages carrying passengers to their hotels or boarding-houses. The steam er Alameda, having taken on board some 2,000 tons of sugar and other heavy freight, commences on the morning of the day of sailing, to receive bananas in immense bun dles, to the number of 1,500 clusters, which aie stowed away on the after part of the up per deck and covered with canvas. While this is goiug on, truuks and personal bag gage arrive at intervals until ll o'clock. During the hour before sailing Berger's Band commences playing and continues un til the steamer leaves. The wharf and deck of the steamer swarm with people, coming and going, like bees at a hive. The natives turn out in a mass, and friends to take leave of departing friends. The gong sounds and there is a hasty boarding of all passengers and leaving of those that remain. The gang way is taken ashore, hawsers cast off, the propeller turns and the huge ship moves slowly backwards and outwards, until, de scribing a half-circle she is headed for the channel, when she moves out of the harbor with increasing motion until human faces arc no longer distinguishable and all be comes a beautiful dissolving panorama. Just now, as we near the lighthouse, the little steam yacht "Waimanalo," with Bergtr's Band on board, runs alongside playing na tional airs; the United States steamer Hart ford's decks are alive with officers and ma. rines, in their white uniforms, and her band also playing lively airs, while handkerchiefs are waving and cheer on cheer are heard on every side. A dozen or more of the citizens remained on board, exchanging adieux with departing friends until outside the channel the ladder goes over the ship's side, the pilot and citi zens run down into small boats, are trans ported to the yacht, and then the ship is put on her course at full speed. j There is something remarkable in all I these demonstrations, showing the loyalt' of Americans to their own nationality in whatever shape it appears. The O. S. S. Co. is very popular every where among-the Ha waiians. The steamers of the Australian line arrive and depart without eliciting any thing more than the ordinary civilities. The great popularity of Captain Morse and the officers of the O. S. S. Co. may have some thing to do with these demonstrations. But the facts of isolation and limited congenial social relations has much more. An incident on the departure of the Alameda is worthy of note. Mr. S. J. Shaw of Santa Clara county, Cal., having resided the last live years at Honolulu and endeared himself to many California visitors by various acts of kindness and self-sacrilicc, on going on board for a visit to the coast, was attended by a large number of friends, loaded with wreaths, carrying in his arms a beautiful album rilled with photographs of his friends. It was a most beautiful and touching tribute to a friend seldom witnessed in these days of haste and hurry and gives one a better estimate of these people than many of the rambling, unreliable letters of tourists. At Sea, March 5th, 1881. A. W. S. injBi AlrlUlrULlUlildl Our supply of Fruits and Veg etables. by a correspondent. I am often asked why I do not make a business of growing vegetables for the Honolulu market. Some ol my friends and others through them have heard of the sort of things 1 do from time to time, raise on ground, which, when I took it in hand, was deemed to be by no means promising. They occasionally besiege me with requests and suggestions, and are quite scepti cal when I tell them that if I followed their advice I could not sell my pro duce. I thought that it might not be a bad thing by way of general reply to these friends of mine, to let them and the public know through the 'Agriculturalist" columns of the Pa cific Commercial, Advertiser something about what might be done here and what the hindrances are. We all know what a Chinaman's veg etables are. From year to year, the same thing over and qver again no striking out into new lines, no im provement in the quality of what we have been accirstomed to get from him. Now there are a few white men here who, like myself, grow vegetables and some fruit, chiefly for their own use. When any one is so fortunate as to obtain vegetables thus raised, he is sure to exclaim about the difference in quality between them and what he can buy from the Chinese peddlers. The superior quality thus observed is also supplemented by a wider range of variety. Now if there were any hope of the white man, or even of the Portuguese, many of whom are good gardeners, making this line of indus try pay, there is nothing in the soil or the climate or the vicinity of Ho nolulu to prevent the growth of veget ables as fine in quality, and in as large variety as could be desired. My stravT berries, for instance, this year are, many of them, nearly as large as a small hen's egg, and my plants pro duced them in brave quantities. What a contrast this large and luscious'fruit presents to the miserable little sour things which the Chinamen hawk round in tins. It is as easy to grow fine strawberries as poor ones if tbo grow er knows something of what is requir ed to ensure success. And so it is with the majority of our vegetables. Cel ery, turnips, beets, rhubarb, peas, sweet corn, (the real thingnot the rubbish the Chinaman cultivates) Dent corn, squashes of various sorts, and many other things can be grown here in great perfection. And they would be, if only there were any method of bringing the producer and the consumer into contact without much labor and trouble to either. Thw can only be brought about by the es tablishment of a good centrally placed market. White men who understand the business would grow and bring to such a market, if it existed, ample supplies of splendid vegetables. The only market we have the fish mark et is too much out of the way for such a trade. Very few of those to whom a really good supply of fruit and vegetables would be a boon, ever visit the fish market, except to show it to some stranger visiting the Islands for the first time, Nothing very large would be wanted in the first instance, but it is certain that until we have such an institution handily situated, we shall look in vain for any improve ment on the present condition of our supplies and shall have to content ourselves with just the old bill of fare which the Chinaman has learned how to purvey. - - The Sugar Duties. A correspondent of the U. S. Commer cial Jiulletui, writing from Washington, under date of February 28tb, 1881, says that tho representatives of tho Louisiana sugar interests have u series of contests ou their bauds. Of all protectionists they sire the most sensitive, irritable and doini neermg. During the last Congress thev succeeded in makiilg much ado over the Hawaiian JRecijyrocity Treaty. They stirred up the Foreign Affairs Com mittee of both Houses ; they rattled the j dry bones of the State Department; they disturbed the serenity of the Treasury Department; and they finally succeeded in securing from the Senate Finance Committee a resolution giving 'notice of the termination of the reciprocity treaty according to the provision fhereiu con tained for the termination of the same." It was charged that frauds were being committed against tho Government by the free importation of sugars not contem plated by the terms of the treaty. It was asserted that the United States had made a bad bargain, and should get rid of tho treaty without further delay. Owing to this flurry, raised chiefly by Louisiana sugar men, the Secretary of the Treasury appointed a commission last summer to visit the Pacific coast cities and the Ha waiian Islands, and to investigate tho roughly the charges which had been made before the committee of Congress. The investigation was made, and the re port of the commission was a complete refutation of the charges of fraud. But the Louisiana sugar people are not yet satisfied, and through their sugar Senator, Mr. Gibson, himself a planter, they have renewed the agitation in favor of terminating the treaty. The Senate Committee on Foreign Relations, how ever, has made an adverse report on the subject. This report is now ou the Senate calendar, and it may soon be called ujj. , But the activity of the Louisianaians is not confined to opposition to the Ja ivaiian treaty. From the time it be came known, over a year ago, that tho proposed Mexican treaty provides for tho admission free of duty of Mexican raw sugars. Congressional representatives of the Louisiana planters and refiners havo been persistent iu their efforts to sectare the defeat of the treaty. They apparent ly act on the theory that the Government of the United States is maintained solely to protect their sugar interests. They will not tolerate the idea that Congress will be so utterly and unreasonably reck less as to pass a horizontal tariff bill, which proposes to make a twenty per cent reduction of the existing sugar duties and leave Louisiana sugars with a pitiful protection of only about 40 per cent ad valorem! It is not strange that members of both parties and of all economic creeds in Congress are becoming impatient with the demands and the threats of the re presentatives of the Louisiana sugar plantations. Are the commercial and tariff policies of thirty-seven States to be subject to the dictation of a few compara tively small districts of the thirty-eighth State of the Union ? is a question which is receiving consideration from Senators and Representatives in Congress ; and if by combinations and log-rollin" the Louisiana Senators and Representatives should succeed in defeating the Mexican treaty and tariff reduction at this session it would give great impetus to the move ment, already strong, in favor of reducing the sugar duties not 20 per cent, but 50 per cent, if not to wipe them out "as. with a sponge.'!