The Pacific commercial advertiser. [volume], May 12, 1899, Page 5, Image 5

About The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921

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I'AOIl'IO UGMMEflOiAt ADVKH:WtJKU, UOKOtu'U;, jrAV 12. IKfiO.
IN THE SIJPBKMK COURT OF THE HAWAIIAN
ISLANDS.
-L 1:1:11 Ti:j:m, 1 si:.
MAXU KAPL'LH, AXXA LEWI, DAXIKLA KAPULK,
1 AK IK KAIH'LK ami LOUISA K A ITLK, infant, hv
Ikt Ouanlian sul lircm MOKLIIIWA ami KAIH7K,
her Iiu.sbarifl.
Appeai, from I)i: of Cii.-ri rr .Jiix.k, oi Ciiiclit.
Submitted Mam u :;, Imi:.. Decii.ki. .May 8. isii.
Jldd, (.L, Frkai: and Wiiiti.;. .LL
An answer to a bill in equity should be signed .bv respondent, and
sworn to by him. unless the oath be waived by the bill.
An unsworn answer, signed by an attorney for defendants, in no an
swer. A receipt for money by a wife in part payment of land of his wife, her
name -being written by her husband and erossmark affixed by her,
she haying agreed verbally to the sale, and the party purchasing
immediately entering into possession of the premises, binds the
wire, and entitles the purchaser or his heirs to a decree of specific
performance.
OPINION OF THE COURT 1JY JUDD, C.J.
This is a bill for specific performance. The circuit judge dis
missed the bill on the ground that '-Mkiihiv, the- defendant,
did not bind herself to execute the deed for the conveyance of
tho land in question, savin-: "There Is a doubt in mv mind as
to tho genuineness of tho cross mark n-ainst Mokuhiwa's name,
for there was no witness to it."
The decree dismissing the bill is appealed from by plaintiifs.
Tho substantial facts alleged in tho bill and sustained bv the
evidence are, that Mokuhiwa being possessed in her own right
of the land described in Koyal Patent numbered UTOO, situate
in TVaiehii, District of AVailuku, .Maui, awed orallv, together
with her husband Kill i no, to sell the land to Kapule for five hun
dred dollars. This was in ISO 1. Plaintiffs are the children and
heirs at law of Kapule who died intestate. One hundred dollars
in cash was paid by Kapule soon after the agreement was made.
Tho receipt for the one hundred dollars is as follows:
"Wc two havo received one hundred dollars from Kapule,
money for tho sale of a certain piece of land of Mokuhiwa for
five hundred dollars. One hundred dollars is paid, four hundred
dollars remain. For the truth of this money received by us on
this 21st dav, At. 1S91.
7
Mokuhiwa
Kahuo."
There were introduced in evidence about twenty-eight re
ceipts, mainly being for money advanced by plaintiffs to pay
interest on the mortgage on the land, and taxes. Some of them
havo ATokuhiwa's name alone signed to them; some have Ka
hue's name; and some of the receipts bear both names. One re
ceipt is signed by Ar. K. Castle and dated September 1, 1S93, in
which he acknowledges the payment of $.350, fully explained
by the testimony to be money paid in plaintiffs' behalf for in
terest and principal on a mortgage which was upon the land
when Kapule bought it.
Plaintiffs tendered $03.50 to the defendants beiim- the balance
alleged to be due, but it was declined.
T "'itifFs father Kapule entered into possession of the prem
ises in IS91, and plaintiffs, his heirs, are still in possession
The original ownership of the land by Mokuhiwa and the rela
tionship of plaintiffs to Kapule are admitted.
The first point raised by the appeal is the overruling of plain
tiffs' motion to strike defendants" answer from the files because
it is not signed by the parties or either of them, and is not
sworn to.
The general rule is that the answer of the defendant must
bo signed by him. 1 Beach, Equity, See. 055; Dan., Ch. Pr.,
See. 733; Denison v. Bassford, 7 Paige 390. And we might
quote other authorities but. they are unnecessary since our
statute, Section 1501, Civil Laws, provides explicity that "an
answer shall bo supported by oath unless waived by the adverse
party." This is the latter part of the section which reads: "A
defense in equity shall be made by demurrer, plea or answer."
In this case the answer was signed "Mokuhiwa and Kalme bv
their attorney, J. Mahiai Kaneakua." It was not sworn to. It
does not bind the conscience of the respondent and is no answer.
TVe cannot find bv it that Mokuhiwa denies that she sicried the
receipts for the purchase money on the contract of sale.
Have the plaintiffs proved a contract ?for a sale of land sutfi
cientlv to entitle them to relief.
The oral agreement for the sale of the land is well established.
Mokuhiwa and Kahuo sought Kapule as a purchaser and agreed
to sell tho land to him for five hundred dollars, as a mortgage
thereon made by Mokuhiwa to AV. IL Castle was advertised to
be foreclosed.
Somewhat later, the first payment of one hundred dollars was
made. Maim Kapule says that he was present when the sale
was discussed and agreed to by defendants to his father Kapule;
that ho "saw the receipt above recited, signed by Mokuhiwa and
Kahuc." He does not say that she wrote her name herself. It
closely resembles the handwriting of Kahuc and was undoubtedly
written by him, but if Mamvs testimony is true, and it is not de
nied, that he "'saw her sign" the receipt he must mean that she
signed it by making her cross-mark. She being present when
her name was written by Kalme even if he made also her cross
mark it is legitimate to infer that she authorized her husband
to sign her name .
It is contended that this leceipt does not sufficiently describe
V
tho land to enable the court to decree specific performance of
koua her
X X
kalia or mark
cwaUacl. ii ,tlf. Another jMpcr hi i h..';iet road "Soptoin
bcr A. I). l;l, I Mokuhiwa and M. Kahuc we two whoo
names are written above, agree to a ronain piece of land
situate at, Kumuu iliwili. "Waiehu. Maui, to Kapule for five hun
dred dollars if we inilv receive it and if he navs it lullv, it will
become KapuieV ab-olutcly. l-'or the truth of this we hereby
sign our own names.
.Mokuhiwa
Kahuc.
This paper, if its execution was duly proven, would supply the
deficiency as to the description of the land for which the one
hundred dollars was paid. fr it gives the mime of its loealitv.
Hut upon an examination of the evidence sent up we do not find
any testimony proving it. 1 he names written indeed roemble
the signatures affixed to ;he receipt, for one hundred dollars.
Put the failure to prove its execution does not avail the de
fendants. Then is on tile a written admission by the parties
that Apana 1 of the land in question contains 3.49 acres and tha
said Apana 1 i situated at. Kumuwiliwili," Waichu, Maui.
-Moreover it is in evidence that Kapule and family after him,
took possession of this very piece of land, which, according to
A if hit r. h'aiin unutlii, S I law. ;20-31? is evidence of hkrrtiti
catioii of the land, and shows part performance.
The circuit judge relied upon the cao of Opunui r. Kauhi,
Js Haw. o19. in that case the woman, whoc separate estate the
land in question was, expressly declined to sign the contract of
sale, and she also declined to direct hei husband to sign for her.
It was not nccessarv that Mokuhiwa hould have sinned everv
receipt for the money. All of the circumstances convince us
that Mokuhiwa was a willing party to the agreement to sell, and
that the plaintiffs have a clear right to the relief prayed for.
If tho plaintiifs have not paid the full amount of the purchase
money, reference may be made to tho clerk to compute the same
and to report thereon. On the eomirg in of this report an ap
propriate decree will be made.
(i. J foil and I'obcrfsnu tO Wilder for plaintiffs.
'. J. Kanvaktui for defendants.
NOT SO EASY.
Aguinaldo Persistently Declines to Be
come a Conquered General.
(San Francisco Chronicle.)
The easy predictions that Aguinaldo
would sue for peace and that matters
would soon shape tnemselves in the
Philippines so t'uat our military ex
penses might he reduced, are heing
confuted day by day. Aguinaldo, far
xroni asking favors, is 'making very ac
tive warfare, indeed. He has captured
a Lieutenant of the Navy and an en
tire landing party; invaded the terri
tory around Malolos, whence lie was
lately driven; killed a Colonel and
. . in m rrn nn w f o n ri
cevt'u autJii iii. Tine jiijficim.ii u uu
wounded forty-two, the affair being a
successful ambus.h; and has kept up
an incessant and murderous guerilla
attack upon our lines. There is no
evidence whatever that the backbone
of his campaign has been broken or
that he is in any respect discouraged.
There is, indeed, more and more rea
son as his methods of warfare are
considered, to recognize the truth, of
Gen. Rios prediction, that the Ameri
cans may win every battle and yet
lose the campaign.
One serious trouble the Americans
have to contend with is the lack of
men to supply garrisons. When a town
is taken it cannot be held unless, as
in the case of Malolos it is treated
as a division headquarters. Conse
quently, the enemy regains the most
of what he loses. So long as this is the
case a siiit for peace is the last thing
Aguinaldo needs to think of. The cam
paign is satisfactory to him as it
stands, and promises to be more so
when tlLe tropical heats and rains be
gin to do their deadly work among the
northern invaders.
FLIGHT OF A CANNON SHOT.
The longest distance ever covered
by a cannon shot is said to be fifteen
miles, but that probably was eeveral
miles with the possible limit, accord
ing to Captain E. L. Zalinski, the
retired army officer, who ranks
among the highest authorities in the
world on munitions or war. On the
point of possible range Captain Zalin
ski says: "Under existing conditions
and with the guns.powder and projec
tiles available, I believe it possible to
fire a shot a distance of eighteen miles.
The distance will begreater when a
powder is produced that will exert a
unitorm pressure on the gun through
out the course of the projectile from
breech to muzzle.
FAST CHINESE BOAT.
The Hai Lung, a torpedo boat built
by Schichau, of Elbing, for the Chinese
navy, is credited with a run of eight
en and one half knots at an average
speed of thirty-five knots an hour, and
with a maximum speed rate at 36.7
knots, or 42.2 miles per hour.
This beats the Turbinia's rate of
thirty-five knots an hour, and moreover
the Turbinia is only a forty-ton boat,
while the Schichau boat is four and
one-half times larger. The new and
enlarged Turbinlas now building at
Newcastle, England, for the British
ier
X
mark
the H li Lung. The Schichau boat is
fitted with reciprocating engines; the
British torpedo boats will have the new
motor- turbine steam power.
I consider It not onlj' a pleasure but
a duty I owe to my neighbors to tell
about the wonderful cure effected in
my cace by the timely use of Chamber
lain's Colic, Cholera and Diarrhoea
Remedy. I was taken very badly with
flux aiul procured a bottle of this rem
edy. A few doses of it effected a per
manent cure. I take pleasure in recom
mending it to others suffering from
that dreadful disease. J. W. Lynch,
Dorr, AV. Va. This remedy is sold by
all druggists. Benson, Smith & Co.,
Ltd., agents for II. I.
HONOLULU EYE AND EAR
INFIRMARY
Will open for treatment of patients on
June 1st next.
3rd Floor Model Block.
NEXT PROGRESS HALL.
Corner Beretania and Fort Streets.
TRUSTEES RobL. Lewers, Esq.,
president; J. H. Hackfeld, B. F. Dil
lingham, Thos. Hobron, L. C. Abies,
E. Mott-Smith, secretary and treasurer.
SURGICAL STAFF Dr. Sloggett
and Dr. Andrews.
NOTICE OF REMOVAL.
Dr. Sloggett will remove his offices
to the third floor Model Block, on June
1st next.
CYE, EAR, NOSE, THROAT.
CASTLE & COO KB, U&
HONOLULU.
COMMISSION MERCHANTS,
1UGAR FACTORS.
AGEXTS FOR
The Ewa Plantation Co.
The Waialua Agricultural Ca., I:t6
The Kohala Sugar Co.
The Walmea Sugar Mill Co.
The Koloa Agricultural Co.
The Onomea Sugar Co.
The Fulton Iron Works, Sc. ly:X
The Standard Oil Co.
The Geo. F. Blake Steam Puss?.
Weston's Centrifugals.
Tho New England Mutual LIT J&n&i
ace Co., of Boston.
Tho Aetna Fire Insurance C.,
srtford. Conn.
The Alliance Assurance Oo., si Sea
ioa.
1
Powder
I YOU GET I
fiff EITHER A
"YOST" T. L
OR A-
liTIDWQM
0
For Perfect Work.
fill IP II
tlM nil fluid
LIMITED.
GOLDEN HOLE BAZAAR.
OOO
HAWAIIAN SOUVENIR FLAGS
lO CENTS EACH.
HAWAIIAN SOUVENIR PINS.
HAWAIIAN SCENIC CALENDARS.
HAWAIIAN HATS AND CURIOS!
HAWAIIAN SHELL LEIS!
HAWAIIAN SILK FLAGS!
FINE STATIONERY,
For Foreign Correspondence.
NOVELS! BOOKS! NOVELS!
316 Fort Street,
Castle & Cooke
LIMITED.
LIFE np FIRE
re
J i
l
5
AGENTS FOR
IP
OF BOSTON.:
iso fife iosuronoe (lipin
OF HARTFORD.
HOME BAKERY
and CAFE .
Tho Only First Class American
Restaurant in tho City.
oo
CAFE open from
6 A. M. TILL MIDNIGHT
BUSINESS LUNCH, from 11 a. m
till 2 p. m 25 Cents.
DINNER, from 5 to 7 p. m.
50 Cents.
Ics Greai Parlors
IX CONNECTION.
Bread, Cakes, Etc., delivered to
any part of the city free.
oo
527-529 Fort Street,
HONOLULU, H. I.
SHAVER LUNCH ROOMS.
Fort St., Opp. Wilder & Co.,
H. J. NOLTE, Prop.
First-Ciass Lunches Served
Wltn Tea, Coffee, Soda Water,
Ginger Ale or Milk. Open
from 3 a. m. till 10 p. m.
Smokera' Requisites & Specialty.
HAWAII 5HINPO SHA.
THE PIONEER JAPANESE PRINTING OFFICE
The publishers of "Hawaii Shinpo."
The only daily Japanese paper pub
lished In the Islands.
EDITOR M. TAKAHASHI.
PROPRIETOR C SHIOZAWA.
Office: Nuuanu avenue, above Bere
tania. 5215
est
ABE
OUR
Mm
fa
fa
will from this day on be
vnder the direct charge of fa
ri graduate oj the rhila- fa
dcljdiia Optical College, J
ft' and all work will receive his fa
t closest attention. J
M
fa
fa
fa
The accurate fitting
ofa
refraction will continue to be
our sjyecial aim, though no part fa
of this most necessary work will
sujfer from the slightest neglect,
As tee grind all manner of
comjtiicatcd lemcs in our otcu J
icorkshop, the advantage to you
of receiving your qlasecs within fa
twenty-four hours after receipt
of the prescription cannot be
over estimated. fa
fa
fa
fa
fa
Recent imports of
Lemaire,
Bardou J
fa
and the wonderful
TR1EDER BINOCULARS
2'laccs our stock of Optical k
Goods at the very top. The
Tried er JSinocular, having
many times the magnifying b
power of the ordinary Marine jj
Glassy together with comjtacl
5 ncss, recommends it as the finest t
glass for every use, where the j
5 magnification of objects is dc-
sired. We will be glad to show ti
ft the difference, and ennvtn.ee umi.
m . J J ,7V"
of the above fact.
fa
1
fa
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v o
The best at tho lowest
price at HOPr'6.
J?
Keep Cool
O About It; you may be fight
ing mad when you learn our
prices and compare them with
those charged In other shops for
inferior goods. We buy our
stock of furniture to sell, not to
keep. We charge a reasonable
price for things and in that way
we are constantly putting furni
ture into the homes of town peo
ple. This week we are going to of
fer you your selection of var
ious styles of
Parlor and
Dining Room Chairs
at an inside figure.
Also ask us to show you our $
BEAUTIFULLY CARVED 5
HARDWOOD EXTENSION TABLES.
The sort that have the leaves
under the table and which fit in
place automatically, are super
ior to the old style and are act
so expensive.
You'll be interested in our as
sortment of
We have many pretty patterns
for you to choose from; some
large, some small, some rlaln,
some fancy, at very reasomable
prices.
OPP & CO.
Leading Furniture Dealers
KING & BETHEL STS.
$KTOtOTOTOtOrOTW
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