King v. Hutchinson

OPINION OP THE COURT BY WHITING, J. This is an action of assumpsit for $200 upon the following contract, viz.: “Studio, Nuuanu Ave., Honolulu, March 21, 1891. “I agree to pay Mr. William King (two hundred dollars) on receiving the commission to execute a statue for the Kalakaua Monument Committee, or as soon 'as moneys for said statue are paid into my hands. Allen Hutchinson. [246] Judgment was rendered in favor of tbe plaintiff by tbe District Magistrate of Honolulu, and defendant appealed on tbe following points of law: “1. Tbe agreement is illegal, being made by one whose duty it was to obtain tbe best contract without favoring any person, tbe appellee, "W. King, being a member of tbe Kala-kaua Monument Association. “2. Tbe agreement has not been performed (a) by obtaining (if that bad been done) a contract for a statue, and (b) because such contract for a statue was not obtained.” On tbe second point tbe evidence showed that on March 21, 1891, tbe defendant approached plaintiff with an agreement to assist him in getting a contract from tbe Kalakaua Monument Association for a commission for a statue. Hutchinson claimed that King’s services would.be of value to him, and insisted upon giving King tbe agreement in question, which defendant wrote out himself. Plaintiff testified that be rendered tbe services, and defendant got tbe “commission to execute tbe bust or statue, and bad been paid $1,800 or $2,000.” Tbe defendant testified that at tbe time of tbe agreement with King there was a distinct understanding that it was for a statue, and for a sum of $10,000 at least. “I never procured tbe statue; I did not get tbe statue because tbe whole thing lapsed. Three years or more before it was revived, and then it was brought to a bead immediately, in June, 1894. I got tbe commission for bust by inducing tbe members to attend tbe meeting to consider a propostion I bad put in to make a bust of Kalakaua; a bust was made.” M. P. Robinson testified that be was a member of tbe original committee in 1891, when tbe association was first organized; tbe object of tbe association was to erect a full-sized bronze monument of Kalakaua. On tbe second point raised, tbe question is whether tbe contract for a “bust” comes within tbe agreement to pay for a commission for a “statue.” “Statue” is defined: “A lifelike representation of a human [247] figure or animal in. some solid substance, as marble, bronze, iron, wood.” Oglive’s Imperial Diet. “A solid substance formed by carving into the likeness of a whole living being;'an image as a statue of Hercules or of a lion.” "Webster’s Diet. “A plastic work representing a human or animal figure, generally in marble or bronze, especially such a work nearly life' size or large as distinguished from a statuette and preserving the proportions in all directions as distinguished from relief.” Standard Diet. “A figure of a person or an animal, made of some solid substance, as marble, bronze, iron or wood. ****£_ sculptured, cast, or molded, figure properly of some size (as distinguished from a statuette or figurine) and in the round (as distinguished from a relief or an intaglio).” Century Diet. “Bust” is defined: “In sculpture. The figure of a person in relief showing only the head, shoulders and breast. The term may be applied to the head or neck only, or to the head and neck with the shoulders and breast, or to the head with the whole chest, or to the head, neck, breast and shoulders with the arms truncated above the elbow.” Century Diet. (1) “A piece of statuary representing the upper part of the human figure, including the head, shoulders and breast.” • (2) “The portion of the human body included between the head and waist, whether in statuary or in the person.” Webster’s Diet. “The human head, shoulders and breast, generally without arms, as represented in sculpture.” Standard Diet. Thus there appears to be a clear and well defined distinction between a “statue” and a “bust,” and the contract being “to pay on receiving a commission to execute a statue,” the plaintiff cannot recover on this contract, he failing to prove that the original contract of March, 1891, was carried out. The fact that three years passed before any commission whatever was given by the Kalakaua Monument Association tends to confirm [248] the view that the idea of erecting a statue of Kalakaua was abandoned, and naturally the contract to pay King fell with it. P. Neumann, for plaintiff. J. &[. Monsarrat, for defendant. We hold that the commission to execute a “bust” was not in fulfillment of the King-Iiutchinson agreement on which action was brought. The plaintiff, howeArer, claims that the defendant ratified the change from a “statue” to a “bust,” so that he was liable as if the original agreement had been for a “bust or statue,” and relies on evidence of Hutchinson, viz.: “I received first installment 3 or 4 months after I got commission. ITad conversation with King day before. He said bill he had for me was good. I said I did not consider it good, as original purpose had failed. I did offer to compromise his claim by payment of $100, but I said this because he gave me to understand he would put great difficulties in my way. I said to him: ‘As $200 stands to $10,000, so does $40 to $2,000.’ He agreed to accept the $100, nothing to be done; he did agree to accept the $100 if I paid it out of the first money received. I agreed to pay King $100 on the following day on the first payment being handed over to me by the treasurer; this I would have performed had it been in my power. I told King that owing to my finances being in the possession of somebody else, I had undertaken a contract I could not perform, but that I was willing to give a bill payable on the next installment; this he declined and said he would go back on the original note; I then accepted the issue.” This is not sufficient to ratify the original agreement, nor can it have the effect of inserting the word “bust” in the original contract, or to cause the word “statue” to be construed to mean or include the word “bust.” At most it was a new contract or an offer of compromise of a disputed claim, and in the present action the plaintiff cannot rely upon it to recover. It is unnecessary to consider the first point raised. The appeal is sustained, judgment reversed and the case remanded to the District Magistrate to enter judgment for defendant.