Volume 26 — Hawaii Reports

<p>Appeal from Circuit Judge First Circuit. Hon. J. J. Banks, Judge.</p>

<p>Exceptions prom Circuit Court First Circuit. Hon. J. T. DeBolt, Judge.</p>

<p> Taxation—value reduced when too high. </p> <p>The assessment of the property of the Hawi Mill & Plantation Company, Limited, as of January 1, 1920, by the tax appeal court at $1,500,000, held upon the evidence too high, and reduced to $1,433,170.</p>

<p>Exceptions from Circuit Court Fifth Circuit. Hon. W. C. Achi, Jr., Judge.</p>

<p> Evidence—parol evidence to vary the terms of a written contract admissible, when. </p> <p>A parol agreement which is collateral to a written contract and not inconsistent with it may be proved but no rule is better settled than that which forbids parol evidence of terms which are inconsistent with the provisions of a written contract declared upon in an action at law.</p> <p> Same—same. </p> <p>A written contract providing for payment for a crop of sugar cane with prices based upon New York quotations forty-five days after the cane is delivered for 96° sugar cannot be varied by showing that the payment was not to be made upon that basis.</p> <p> Same—cross-examination. </p> <p>It is a general rule of law that the extent and manner, of cross-examination of a witness which may be made with regard to matters not inquired about in the direct examination are largely subject to the control of the trial court in the exercise of its discretion. This discretion, however, is a judicial one and subject to review for abuse.</p> <p> Pleading—amended pleadings. </p> <p>A court will not allow an amendment designed to permit the introduction' of parol testimony varying the terms of the written contract.</p> <p> Continuance—motion for addressed to the sound legal discretion of the court. </p> <p>Motions for continuance are addressed to the sound legal discretion of the court and unless' that discretion is clearly abused no error is shown.</p>

<p>Chattel Mortgage—effect of where mortgagor retains possession.</p> <p>In this jurisdiction a chattel mortgage, the mortgagor remaining in possession, does not transfer the title to the mortgagee—it merely gives the mortgagee security upon the property.</p> <p>Landlord and Tenant—covenant against assignment—effect of mortgage.</p> <p>A covenant against assignment contained in a lease is not broken by the execution of a mortgage covering the leasehold property where the mortgagor retains possession of the property.</p>

<p>Appeal aud Error—interlocutory appeal.</p> <p>After allowing an interlocutory appeal tbe court below should stay its band until that appeal is perfected and determined in tbe appellate court.</p> <p> Parties—general rule in equity. </p> <p>It is a general rule in equity that all persons materially interested, either legally or beneficially, in the subject-matter of a suit are to be made parties to it either as plaintiffs or defendants, however numerous they may be, so that there may be a complete decree which will bind them all.</p> <p> Same—same—exceptions to the rule. </p> <p>To this rule there are certain exceptions, one of which is that where the parties interested in the suit are numerous and it would hot be feasible without great inconvenience to make all of them parties a few may sue for themselves and all others similarly situated.</p>

<p>Exceptions from Circuit Court First Circuit. Hon. J. T. DeBolt, Judge.</p>

<p>Appeal from Circuit Judge Fourth Circuit. Hon. C. K. Quinn, Judge.</p>

<p>Exceptions prom Circuit Court First Circuit. Hon. J. J. Banks, Judge.</p>

<p>Appeal from Oirouit Judge Fourth Oirouit. Hon. J. W. Thompson, Judge.</p>

<p>Municipal Corporations—territorial board of health—civil service employee—removal of.</p> <p>Where a person is within the classified civil service employment of the board of health under chapter 65 R. L. 1915 and the rules made by the civil service commission under that chap.-ter there is a contract between the employee and the Territory in accordance with the provisions of the statute and the rules in regard to the terms of his employment and if he is discharged or refused employment in violation of those provisions he may recover his damages in an action of contract.</p> <p> Same—-.same—same—same—measure of damages. </p> <p>The measure of damages is the pay he would have earned less what he earned or in the‘exercise of proper diligence might have earned.</p>

<p> Territory—legislative power. </p> <p>An appropriation of public money by tbe legislature for the purpose of refunding to a purchaser a portion of the purchase price of public lands on the assumption that the land was appraised too high is an attempt to review and revise a lawful act of a coordinate branch of the government and is not a rightful subject of legislation.</p> <p> Same—same. </p> <p>In order to support an act appropriating public money for the benefit of an individual in the absence of a legal obligation there must be at least a moral or equitable obligation owing by the public to the individual for whose benefit the appropriation is made?</p>

<p> Carriers—duty to warn passenger of danger. </p> <p>When, a passenger is in a dangerous position and is unconscious of his danger and the carrier knows both that the passenger is in danger and that he is unconscious thereof it is the duty of the carrier to exercise due and proper care for his safety which would include giving to the passenger proper warning, provided his danger was discovered in time to have prevented the accident.</p>

<p>Motion to Strike Brief.</p>

<p>Appeal prom Circuit Judge First Circuit. Hon. C. S. Franklin, Judge.</p>

<p>Landlord and Tenant—leases—assignments.</p> <p>A provision in a lease to operate as a restriction on the right of assignment must be clearly and positively expressed and the insertion of the words “permitted assigns” in a single instance in the habendum clause of the lease is insufficient to constitute an agreement not to assign.</p>

<p> Trial—findings of fact—credibility of witnesses. </p> <p>Where a jury is waived the issues concerning the credibility of witnesses and the value of the evidence are to be determined solely by the trial court and its findings cannot be disturbed on appeal if supported by more than a scintilla of evidence.</p> <p> Evidence—lease without certificate of acknowledgment or with defective certificate—competent when. </p> <p>Where the signatures of the parties to a lease are identified by a competent witness at the trial the lease thereupon becomes admissible as evidence irrespective of whether the certificate of acknowledgment is in proper form. It is admissible even in the absence of any certificate of acknowledgment.</p>

<p>ERROR to Circuit Judge Fourth Circuit. Hon. C. K. Quinn, Judge.</p>

<p> Divorce—separation. </p> <p>In an action of divorce or separation the trial judge is not authorized to appoint a master clothed with the power and authority vested in masters in chancery.</p> <p> Same—same. </p> <p>The trial judge is not authorized upon granting a separation to order a conveyance to the wife of the real estate of the husband and to vest title therein in her.</p>

<p>Exceptions prom Circuit Court First Circuit. Hon. J. T. DeBolt, Judge.</p>

<p>Cross-Appeals from Circuit Judge First Circuit. Hon. S. B. Kemp, Judge.</p>

<p>Error to Circuit Court First Circuit. Hon. C. S. Franklin, Judge.</p>

<p>Error to Circuit Court First Circuit. Hon. C. S. Franklin, Judge.</p>

<p>Motion to Dismiss Appeal.</p>

<p> Trial—dismissed or nonsuit. </p> <p>In an action on an account stated the defendant having in his answer admitted that an account was stated as alleged except that it was .for a larger amount than claimed by plaintiff it was unnecessary for plaintiff to prove his allegation of an account stated and a motion for a nonsuit on that ground was properly overruled.</p> <p> Courts—decision in jury-waived ease. </p> <p>In a jury-waived case the court shall hear and decide the cause both as to the facts and the law and its decision shall be rendered in writing stating its reasons therefor. The failure to state such reasons is reversible error.</p>

<p>Crimijstal Law—inconsistent verdict.</p> <p>Where four persons are jointly indicted and tried together for the same alleged offense and the evidence in effect is in every respect the same against all of them and diametrically in conflict with the evidence in their favor a verdict finding one guilty and the other three not guilty is inconsistent and invalid and will be set aside.</p>

<p> Wills—contest—appeal to supreme court when. </p> <p>Where in the contest of a will the circuit judge at chambers sitting as a judge of probate decides as a matter of law that the will is invalid the proponent cannot appeal to the circuit court for a jury trial notwithstanding the contestant may have by his contest put matters of fact in issue which were not considered and may therefore under the provisions of section 2508 R. L. 1915 appeal to the supreme court.</p> <p> Same—legatee as subscribing witness. </p> <p>A subscribing witness to a will who is also a legatee is a competent witness to prove its execution but by virtue of section 3262 R. L. 1915 his legacy is void.</p>

<p>Municipal, Corporations—territorial board of health—civil service employee, removal of.</p> <p>An employee of the board of health who is transferred from one of the classified services to another, each of which appointments is in a competitive class, without complying with the rules and regulations of the civil service, and without having his name upon the eligible list of aspirants for the position to which he is transferred, cannot be regarded as a civil service employee and may be discharged at any time when his services are no longer required.</p> <p> Same—same. </p> <p>A civil service employee who abandons the position held by him under the civil service rules and accepts another position is not at liberty to question the appointment of some duly qualified person to the position vacated by him.</p>

<p>Reserved Questions from Circuit Court First Circuit. Hon. J. J. Banks, Judge.</p>

<p> Pleading—definiteness and certainty. </p> <p>Tbe allegation oí tbe complaint must be definite and certain. A mere reference to a lease under wbicb petitioner claims is insufficient.</p>

<p> Wills—residuary trust estate—income from death of testator distributed in absence of provisions in will showing different intention. </p> <p>When a testator gives the residue of his estate to trustees and charges them with the duty of paying the income thereof to certain persons and no time is prescribed in the will for the commencement of the enjoyment of the income of such residue they are entitled to the income of the clear residue as afterwards ascertained from the date of the death of the testator and the fact that the executors are entitled to and do retain the residuary estate in their hands until the close of administration can make no difference, in the status of income accruing thereon pending the administration.</p> <p> Same—same—ordinary current taxes payable out of income. </p> <p>Ordinary current taxes chargeable to a trust estate are as a general rule payable out of the income of the trust estate.</p> <p> Same—same—income tax on profits from sale of portions of trust estate. </p> <p>An income tax levied and collected upon profits realized by a trust estate from the sale of stocks owned by the trust estate is not an ordinary current tax.</p>

<p>Motion to Dismiss Bill of Exceptions.</p>

<p> Bail—surety company. </p> <p>By virtue of section 54, Act 115, S. D. 1917, every surety company which has complied with the prescribed regulations -and obtained a license to do business is qualified to become surety upon any bond authorized or required by the laws of the Territory.</p> <p> Same—same—oumership of property not required. </p> <p>The provisions contained in sections 3741 and 3742 R. L. 1915 making it necessary for the surety on a bail bond to own property within the Territory are abrogated by Act 115 S. L. 1917 in so far as those provisions apply to licensed surety companies.</p>

<p>Reserved Questions from Circuit Judge Fourth Circuit. Hon. C. K. Quinn, Judge.</p>

<p>Executors and Administrators—appointment of master to examine accounts.</p> <p>A master appointed to examine and report upon the final account of an administrator may be authorized to examine and report upon all prior annual accounts although such accounts have already been approved after having been examined and reported upon by other masters appointed for that purpose.</p> <p> Same—effect of order approving annual account. </p> <p>An annual account of an administrator is only prima facie correct and while the administration is still pending is subject to correction of any errors or mistakes thereafter discovered in it without appeal or other direct proceeding to review it or set it aside although upon an ex parte hearing an order has been entered approving it.</p> <p> Same—allowance of counsel fees. </p> <p>An allowance of counsel fees may be refused where the services for which the allowance was claimed were unnecessary in connection with the performance of the duties of the representative.</p> <p> Same—same. </p> <p>Where an administrator has been allowed a retainer for counsel to protect the estate and the exigency presented was not such as to require additional counsel it was not error to disallow anything further in that, behalf.</p> <p> Same—same. </p> <p>In order to entitle an administrator to credit for counsel fees his expenditures must be reasonable and what is a reasonable amount in any particular case is a matter resting within the discretion of the probate judge and will not be disturbed on appeal unless it clearly appears that there has been an abuse of discretion.</p> <p> Same—same. </p> <p>In fixing the amount of counsel fees -to be allowed an administrator out of the estate the probate judge should not be governed absolutely by the opinion of professional men, the charge made by counsel or the contract of employment but should exercise his own fair judgment in fixing the amount allowable with reference to the labor, skill and care required, the value of the estate, the advantages gained or sought by the services and the good faith and reasonable prudence shown by the administrator who claims the allowance.</p> <p> Same—same—to one other than administrator. </p> <p>An estate must bear the expense of its administration and when one of many persons having a common interest in the estate for the benefit of all and at his own expense takes proper proceedings to save it from destruction or to restore it to the purposes of the trust he is entitled to reimbursement out of the estate.</p> <p> Same—same—same. </p> <p>When an administrator claims adversely to the estate to be the absolute owner of a portion of the estate and some of the heirs successfully contest with the administrator his claim of ownership they are entitled to have their reasonable expenses of that contest allowed out of the estate.</p> <p> Same—same—same. </p> <p>When an allowance to a party is proper on account of counsel fees it may be made directly to his counsel without an application by the client.</p> <p> Same—surcharge—interest. </p> <p>An administrator will be charged with interest when he uses the funds of the estate in his own private business or retains them in his hands for an unreasonable length of time to the prejudice of the heirs.</p> <p> Same—same—cost of litigation. </p> <p>Costs of litigation will not be allowed an administrator when he engages in useless, unnecessary or vexatious litigation concerning the estate in his hands.</p> <p> Same—same—same. </p> <p>Where an administrator in good faith refused to pay a claim properly presented because he held a receipt which he thought was a receipt in full for the claim, and this is the only showing as to why payment of the claim was denied, he should be allowed the cost of the litigation which resulted although he was unsuccessful in his attempt to defeat the claim.</p> <p> Same—duty to pay debts. </p> <p>It is the duty of an administrator to pay the personal debts of the decedent to the extent of the assets whether such debts are secured by mortgage on real estate or not. '</p> <p> Same—same—effect of failure to pay debt secured by mortgage on real estate. </p> <p>The administrator of a solvent estate in failing to pay a personal debt of the decedent secured by mortgage on real estate has caused legal injury, not to the éstate of which he is administrator but to the heirs to whom the real estate should have descended discharged of the lien.</p> <p> Same—commissions—disallowance. </p> <p>Statutory commissions are provided for the proper and faithful execution of trusts and when an administrator does not perform the duties devolved upon him by his appointment he is not entitled to commissions.</p> <p> Gifts—deposit to credit of another. </p> <p>In order that the deposit of money in a bank by one person to the credit of another shall operate as a valid gift inter vivos it must appear that the depositor intended a gift and this may be shown by the conduct of the depositor or by his express declaration that the money is to belong to such other person.</p> <p> Same—same. </p> <p>When one deposits money in a bank to the credit of another this alone and unexplained is sufficient evidence of delivery and acceptance but is not sufficient to prove the intention to make a gift of the fund.</p>

<p> Contracts—:planting agreement—covenants. </p> <p>A breach, by the tenant or occupier of the covenants or stipulations on his part to be kept and performed, contained in the contract, does not work a forfeiture of the term in the absence of an express proviso to that effect.</p> <p>Same—same—same.</p> <p>A party endeavoring to enforce a forfeiture must eomply strictly with the tenor of the contract that he is acting under. Same—same—same—construction.</p> <p>The general rule is that the character of a contract to cultivate lands on shares is to be determined by ascertaining the intention of the parties as expressed in the language they have used.</p> <p> Same—same—same—abandonment. </p> <p>The landlord cannot evict the tenant or occupier and after-wards claim an abandonment by him.</p>

<p> Trusts—wasting asset—value ascertained. </p> <p>Whenever a leasehold which should have been converted into a permanent investment at the inception of the trust is held by the trustees until the expiration of the lease and it afterwards becomes necessary to ascertain its value it is proper to consider what it produced in order to ascertain its value at the time it should have been converted.</p> <p>Appeal and Error—-final decree—effect of appeal from.</p> <p>A general appeal from a final decree in equity brings up for review all interlocutory orders, not appealable as of right, which deal with the issues in the case.</p> <p>Same—same—same.</p> <p>An appealable order made in a proceeding growing out of the suit but foreign to the subject-matter of it is not brought up for review by a general appeal from the main decree.</p>

<p>Submissions Upon Agreed Statements oe Fact.</p>

<p>Error to Circuit Judge Fourth Circuit. Hon. J. W. Thompson, Judge.</p>

<p>Reseevbd Questions from Circuit Court First Circuit. Hon. J. J. Banks, Judge.</p>

<p>Reserved Questions from Circuit Judge First Circuit. Hon. C. S. Franklin, Judge. •</p>

<p> Attachment—levy of upon real estate—hoio made. </p> <p>Under our statute an attachment is levied upon real estate by tbe sheriff filing in the office of the registrar of conveyances a copy of the writ of attachment with his certificate indorsed thereon that by virtue of the original writ he has attached such real estate or all of the interest of the defendant therein, describing the same with certainty.</p> <p> Same—same—same. </p> <p>A compliance with the provisions of section 2358 R. L. 1915, while essential to the completion of a title under the lien established by the levy of an attachment, constitutes no part of the levy itself.</p> <p> Same—priority l)etween attachment and unrecorded deed. </p> <p>Where an attaching creditor levies his attachment without notice of a prior unrecorded deed of the debtor, either actual or constructive, he acquires a lien which if perfected by judgment, execution, sale and deed will hold the legal estate as against the grantee in such deed; and having acquired such a lien he- will have a right to enforce the same notwithstanding he may have subsequently to the levy of his attachment received notice of the deed.</p> <p> Same—same—possession as notice. </p> <p>Where one causes an attachment to he levied upon real estate as the property of A in the possession of B, who held an unrecorded deed to said land from A, it is incumbent upon the party causing such levy to he made to make reasonable inquiry as to the rights of the person in possession and having failed to do so he cannot assert that he had no notice of such rights at the time he levied his attachment.</p>

<p> Equity—creditors hill—judgment at law a prerequisite. </p> <p>Where not modified by statute it is a general rule, to which there are a few exceptions, that a creditor cannot resort to equity for aid in the collection of his debt until he has established his claim by recovering judgment at law thereon.</p> <p> Same—same—same—insolvency of debtor. </p> <p>The insolvency of a debtor does not excuse a creditor from reducing his claim to judgment before resorting to equity for aid in the collection of his debt.</p> <p> Same—same—same—property not reachable by execution. </p> <p>The fact that a debtor’s interest in the asset sought to be reached by a creditor’s bill is an equitable one does not excuse the creditor from basing his bill upon a previous judgment.</p>

<p>Submission Upon Agreed Statement oe F.acts. Rehearing.</p>

<p>Appeal prom Circuit Judge First Circuit. Hon. J. J. Banks, Judge.</p>

<p>Expert and Opinion Evidence—opinions of experts generally.</p> <p>Persons having technical and peculiar knowledge on certain subjects are allowed to give tbeir opinions when the (Question involved is such, that the jurors are incompetent to draw their own conclusions from the facts without the aid of such evidence.</p> <p> Same—opinions of surveyors. </p> <p>The opinions of surveyors are admissible as regards the location of a particular survey.</p> <p> Trespass—evidence of true boundaries. </p> <p>In an action of trespass for the destruction of a fence erected by plaintiff on a line alleged to have been agreed upon and acquiesced in by both parties as the boundary, the’ defendant, having in his answer and in his testimony denied the alleged agreement and acquiescence and claimed that the fence' was on his, the defendant’s, land, may adduce evidence of the location of the true boundary.</p>

<p>Appeal and Error—review—findings.</p> <p>Findings of fact by tbe trial court, jury-waived, will not be disturbed wben supported by more than a scintilla of evidence.</p> <p> Same—same—writ of error—same. </p> <p>Findings of fact by the trial court depending on the credibility of witnesses or the weight of evidence will not be disturbed by this court upon review by writ of error.</p> <p> Same—same—same—same. </p> <p>The findings by the trial court upon the subject-matter of a grant and the identity of the grantee when supported by more than a scintilla of the evidence will not be disturbed by this court upon review by'writ of error.</p> <p>Crown Lands.</p> <p>Acts of private parties cannot convert government land into crown land.</p> <p>Public Land—patent valid on its face.</p> <p>Where a patent valid on its face is claimed to be void on the ground that the land therein described is crown land and the claim is not sustained the patent will be considered conclusive evidence of the due compliance with all prerequisites to its issuance and valid.</p> <p>Minister op the Interior—authority to settle “rights” of JconohiM.</p> <p>' Section 7 of the joint resolution of November 7, 1846, did not authorize the minister of the interior with the approval of His Majesty in privy council to settle any “rights” of a konohiki except, such as had theretofore been quieted by award of the land commission. „</p>

<p>Appeal prom Circuit Judge Fifth Circuit.’ Hon. W. C. Achí, Jr., Judge.</p>

<p>New Tbial—insufficiency of evidence.</p> <p>An exception to a verdict upon tbe ground, that it was contrary to tbe evidence and tbe weight of tbe evidence challenges tbe sufficiency of tbe evidence to sustain tbe verdict.</p> <p> Wills—validity—undue influence. </p> <p>To sustain tbe claim, of undue influence it must appear that tbe influence exercised amounted to fraud or coercion or tbe substitution of another’s will for that of tbe testator. Evidence short of this will not suffice.</p> <p>New Trial—insufficiency of evidence.</p> <p>Where tbe evidence failed to sustain a verdict of tbe jury for contestants upon an issue of undue influence exercised upon tbe testator at tbe time of tbe execution of bis will tbe trial court properly set aside tbe verdict and ordered a new trial.</p>

<p>Exceptions prom Circuit Court First Circuit. ' Hon. J. T. DeBodt, Judge.</p>