Volume 27 — Hawaii Reports

<p>Attorney and Client — retainer and authority — incidents of relation — • scope of authority.</p> <p>Where a firm of attorneys is retained generally to represent the applicant upon an application made for a building permit pursuant to and as required by the provisions of Ordinance No. 175 of the ordinances of the City and County of Honolulu, to which a protest has been filed, and to secure the permit therein prayed, its employment includes the implied power to take any and all steps usually and reasonably necessary to secure the desired permit and when secured to oppose any steps that might' be taken within a reasonable time after its issuance to revoke it or nullify the privileges granted under it.</p> <p>Judge — disqualification to act “in any case in which he has been of counsel.”</p> <p>And where the protestor within a reasonable time after the Issuance of the building permit institutes injunction proceedings to prevent the exercise of the privileges granted under it upon the same grounds urged by her in support of her protest to the application such injunction proceeding is but a part and a continuation of the original employment and within the meaning of section 84 of the Organic Act is the “same case” in which the attorneys were originally “of counsel,” and a member of said firm who prior to the institution of such injunction proceeding became a justice of this court is disqualified to sit upon any hearing involving the merits of said cause.</p>

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

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

<p>Motion to Amend Opinion and Decision.</p>

<p>Appeal and Error — dismissal—moot questions.</p> <p>When, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for the appellate court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief, the court will not proceed to a formal judgment, but will dismiss the appeal.</p>

<p>Royal Patent — description, construction of.</p> <p>Where the courses and distances describing the land granted by a royal patent are clear and unambiguous the description in the patent controls and the grant should not be enlarged to cover land not included in the specific description although one of the courses is recited as running “along- the place that is said to belong to K,” the boundaries of which place were not definitely fixed at the time the patent was issued.</p> <p>Adverse Possession — exclusive possession — evidence.</p> <p>It appearing from the evidence that the person who, it is claimed, had gained title to the land by adverse possession was not in exclusive possession thereof for the statutory period, the land being occupied by other persons not shown to have been holding under the claimant, the trial court properly granted a nonsuit.</p>

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

<p>Executors and Administrators — debts due from, executor — liability of surety.</p> <p>Where pursuant to his nomination in a will a debtor of the testator is appointed, executor of his decedent’s, will, the liability of the surety on the executor’s bond is the same whether the debt be treated as realized assets in the hands of the executor in accordance with the common law rule or treated the same as debts due from other sources:</p> <p>Same — collection of assets.</p> <p>An executor is bound to exercise that diligence in tbe collection of debts due tbe estate of bis decedent as an ordinarily prudent man would exercise in bis own business affairs.</p> <p>Same — collection of debts due from executor.</p> <p>Where pursuant to bis nomination in a will, a debtor of tbe testator is appointed executor it is bis duty to pay bis debt to tbe estate to tbe extent of his ability to pay when the same is or becomes due.</p> <p>Same — same—failure to collect — liability of surety.</p> <p>Where pursuant to bis nomination in a will a debtor of the testator is appointed executor of the will of his decedent, tbe surety is liable upon tbe executor’s bond to tbe extent of bis principal’s ability and failure to pay such indebtedness. Where, however, part of tbe executor’s debt to the decedent is not due, and prior to its maturity a receiver is appointed of tbe executor’s property, tbe surety is not liable for the failure of bis prncipal to pay such debt prior to maturity.</p>

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

<p>Landlord and Tenant — covenant to repair.</p> <p>A covenant on the part of the lessee of certain premises to keep the buildings noto thereon in good order and repair held not to bind the lessee to rebuild a building destroyed by fire through no fault of the lessee.</p>

<p>Appeal and Error — preservation in lower court of grounds of review— exceptions — necessity of.</p> <p>Under tbe provisions of section 2522, E. L. 1915, as amended by Act 44, S. L. 1919, no error going to tbe admission or rejection of evidence or to the giving or refusing to give an instruction to the jury shall be considered by the supreme court unless the same is made the subject of an exception noted at the time the alleged error was committed.</p> <p>Same — same—objections-necessity of.</p> <p>Objections not raised in the court below cannot be raised for the first time on appeal.</p>

<p>United States Internal Revenue — stamp taxes — validity and admissibility in evidence of unstamped promissory note.</p> <p>Absence of revenue stamps does not make a promissory note invalid or inadmissible in evidence under tbe act of Congress of February 24, 1919 (40 Stat. L. cb. 18, p. 1057, et seq.).</p> <p>Bills and Notes — transfer—striking out indorsement.</p> <p>Where a promissory note is indorsed by tbe payee for collection and it subsequently is lawfully returned to bis possession be may strike out sucb indorsement.</p> <p>Same — consideration for modification.</p> <p>Mere part-payment hy the malter to the payee as holder of a promissory note of the amount due thereon is not sufficient to support a modification of said note.</p>

<p>Reserved Question prom Circuit Judge First Circuit. Hon. Frank Andrade, Judge.</p>

<p>Contracts — Territory held not to have warranted subsoil conditions where piles were to be driven.</p> <p>In inviting tenders for the construction of a wharf the Territory exhibited to intending bidders blue prints showing the materials found in certain borings made in the site of the proposed wharf and in a large area adjoining thereto. It also exhibited 'plans and specifications relating to the construction of the wharf. The specifications, while specifying the required breadth and thickness of the concrete piles which were to form part of the structure and while further specifying the carrying capacity required of the piles when driven, were silent as to the lengths of the piles and as to the depths to which they would have to be driven (except that a certain minimum penetration was prescribed). One of the general specifications was that “all bidders must visit the site and familiarize themselves with the existing conditions, and the successful bidder will be held to have examined the site, and no extra compensation will be made by reason of any misunderstanding or error on his part as regards the site and the conditions thereof.” One of the more particular specifications read as follows: “1. Sounding: Previously obtained submarine contours of the portion of the work where piles are to be driven are -shown on the drawings. Although they indicate approximately the conditions that are likely to be found, intending bidders must examine the site -of the work, and should satisfy themselves as to the depths to which piles will have to be driven. Borings: Borings have been made in the locations as shown on the plans which show approximately the character of the materials thru which the piles are supposed to be driven.” All of these plans, blue prints and specifications were made a part of the contract with the successful bidder.</p> <p>Held, that the Territory did not warrant the nature or the hearing value of the materials to he encountered in the driving of the piles or the depths to which the piles would have to he driven and that on the contrary the contract clearly placed upon the contractor (a) the burden of making such further examinations of the site as might be necessary in order to avoid misunderstandings or error and (b) all the risks involved in determining the lengths in which the piles should be cast and the depths to which they would have to be driven in order to attain the required bearing capacity.</p>