Dominis v. Campbell

Gentlemen: »Please take notice that the West Maui Sugar Association hold a contract with a native named Eealo for a piece of land in the Ahupuaa of Apuuhua, containing 11 acres or thereabouts, the property of Namaka, deceased, which said contract was made with the full approval of said Namaka; and that under said contract a crop has been cultivated and matured, of sugar cane, by said Eealo, and by him legally and rightfully sold to this Association under date of November 10th, 1870. [311] Any infringement of the rights of this Association in said matter will he dealt with according to law. I am, gentlemen, yours, &c., Z. S. Spalding, For the YTest Maui Sugar Association.” On receipt of this letter the defendants offered to make Kanui refund the $50 she had received, and to pay back the $10 which the plaintiffs had advanced to Kealo, which offer was declined. The cane was taken off by the defendants the same day, and contained fully two and one half tons of sugar, worth $250 in the market. Deducting $35 a ton, the price to have been paid Kealo, and the plaintiffs’ loss is $162.50, without reckoning cost of manufacture, of which there is no evidence. July 15th, 1871, Kanui and her husband executed to the defendants a written lease of said land for the term of five years from April 18th, 1871, for themselves and the minor heirs, of whom they had been appointed guardians. The rent for the entire term was $80. Under the first agreement with Kealo, the plaintiffs paid him $87 for his crop, of which he paid $10 on debt of Namaka’s. Soon after Namaka’s death, the widow, Kanui, made a short visit at Lahaina, returning immediately to Honolulu, and at no time, until last April, appearing to object to Kealo’s occupation of the premises and cultivation of the land. The defendants’ counsel objected to the admissibility of the articles of agreement of October 8th, 1869, in favor of the plaintiffs, (1,) because their names do not appear therein, or (2,) to affect Namaka and his heirs, because they are not parties to the agreement. To the ruling of the Court against the first objection, exception was taken and allowed. To the further objection by the defendants’ counsel, to evidence of Namaka’s assent to the said agreement, on the ground that the terms of a written agreement can not be varied or en [312] larged by parole, and that tbe owner’s parole license to plant and sell cane for seven years on Ms land is void as within the statute of Frauds, Parts 4 and 5, Section 1053, Civil Code, the Court ruled, that a parole license to execute a written lease would,not be good, but that such license might authorize one to plant and sell a crop, provided the agreement were to be performed within one year. Honolulu, July 25th, 1871. In accordance with this ruling, the articles of agreement made by the knowledge and consent of Namaka are not to their full extent binding on his heirs. But the fact that Namaka allowed Kealo to occupy and cultivate the land, and assented to the contract for cultivation and sale of cane upon his land, operates to create a tenancy at will, or at least a license to plant, cultivate and sell a cane crop toithin a year from the making of the agreement. In either case, Kealo was entitled to the crop which he planted and worked before Namaka’s death, and which in fact he delivered to the plaintiffs. The conduct of Kanui in allowing Kealo to continue to occupy the land, and to cultivate another crop, knowing as she may be presumed to have known, the agreement of October 8th, 1869, places it out of her power either to treat Kealo as a trespasser, or to claim any right in the crop which he had raised under these circumstances. She could not by sending Kealo away from the land acquire any title to that crop, even against him, still less as against the plaintiffs, to whom he had conveyed all his title. Kanui having no legal claim on this crop, conveyed none to the defendants. Authorities for the above may be found in Washburn’s Real Prop., (ed. 1868,) Washburn’s Easements, Browne’s Statute of Frauds, Taylor’s Land and Tenant, and Parson’s Contracts, but as I understand that the case will go before the full Court on all these points, I do not review them. Judgment is ordered for the plaintiffs in the sum of one hundred and six-two dollars and fifty cents (1162.50,) and costs. Affirmed on Appeal to the full Court, January Term, 1872.