25 Haw. 185 | Haw. | 1919
OPINION OF THE COURT BY
This is an appeal by the complainants from a decree dismissing their hill. The suit was instituted by Solomon K. Lo and Mary K. Lo, his wife, against The First Trust Company of Hilo, Limited, a corporation, seeking the specific performance of a contract and for an accounting. It appears that on the 18th day of May, 1917, the complainants and the respondent entered into a written contract or agreement whereby the complainants were to, and did, convoy to the respondent that certain premises in the city of Hilo known as the Lo property. In consideration of this conveyance the respondent agreed upon certain conditions, hereinafter set forth, to convey to the complainants certain other property situated in the city of Hilo and known as the Bischoff property and to pay to
Upon the trial it Avas stipulated by the parties that the respondent in accordance with the contract of May 18, 1917, filed in the land court of the Territory of Hawaii a petition to have confirmed in it the unincumbered fee simple title to the Lo property and prosecuted said petition to final decree; that said petition was duly heard and it Avas finally decreed that the title of said Solomon K. Lo, and the title of his grantee in said land, Avas derived from J. W. K. Lo by deed dated February 9, 1911, and that said deed vested in said Solomon K. Lo only a life estate for the life of him the said Solomon K. Lo, and that his subsequent grantee obtained from him only .such life estate and was not entitled to- the fee simple title, which said decree is now, as then, of full force and effect.
The controversy therefore centered around the question of whether or not there had been a modification of the original contract as claimed by complainants. The circuit judge found against the claim of complainants and dismissed their bill. In this Ave think he Avas amply justified by the evidence, both oral and documentary. It is competent for the parties to a simple contract in waiting either altogether to Avaive, dissolve or abandon it, to add to, change or modify it or to' vary or qualify its terms and thus make it a neAV one. In’ such case the contract must be proved partly by the w'ritten and partly by the subsequent oral contract which has thus been incorporated
The transaction of November 20, 1917, which resulted in the insurance of the life of the complainant Solomon K. Lo, the circumstances of which are testified to both by the complainants and Mr. Mariner, an official of the respondent corporation, does not in our opinion show a modification of the original contract. The most that can be said of this evidence, when viewed most favorably for the complainants, is to the effect that after it had been ascertained that the complainant Solomon K. Lo possessed only a life estate in the Lo property and therefore could convey to the respondent only such life estate the respondent requested the complainant Solomon K. Lo to have his life insured in its favor in order to protect it against loss by reason of - its failure to procure the fee simple title to the Lo property.
It is shown by uncontroverted evidence that between the time of'the execution of the contract of May 18, 1917, and the 20th of November, 1917, when said insurance was procured, that the complainants had become indebted to the respondent in a sum in excess of $1000 and it is shown by credible evidence that this sum exceeded $2000’. There is also ample evidence to justify the conclusion that the respondent desired this insurance upon the life of complainant to secure it against loss by reason of these advancements. At any rate there is nothing in the testimony of any of the witnesses which sIioavs a definite agreement between the parties to modify or change any of the terms of the contract as entered into originally. That this was not the intention of the parties to the transaction of November 20, 1917, is further borne out by certain instru
We think that the complainants wholly failed to establish the modification of the contract as claimed and have therefore failed to show themselves entitled to any relief.
The decree appealed from is affirmed.