11 Haw. 468 | Haw. | 1898
Lead Opinion
OPINION OF THE COURT BY
Tin's is an action of assumpsit for breach of a written contract. The plaintiff claimed $2000 damages and obtained a verdict for $957.40. Defendant took a number of exceptions to rulings made during the trial as well as an exception to the overruling of a motion for a new trial. The most important of these exceptions relate to or involve the construction of the contract, which is as follows:
*469 “This indenture made this 10th day of March, A. D. 1892, by and between E. E. Porter, of Honolulu, Island of Oahu, Hawaiian Islands, of the first part, and The Hawaiian Pork Packing Company, Limited, a corporation established and existing under and by virtue of the laws of the Hawaiian Islands, of the second part, witnesseth:
“That the party of the first part in consideration of the agreements below contained on the part of the second part, doth demise and sub-lease unto the party of the second part one-half of the building now occupied by him at Iwilei, Honolulu, on premises held under lease from John Ena, to wit, that portion of said building being 50 feet by 50 feet nearest the sea; and also such portion of the land in said lease now unoccupied as the party of the second part may desire for erecting buildings on and for yard room, together with a free right of way of sufficient width for teams to and from the said premises and the road.
To have and to hold for the remainder of the term of said lease, to wit, until July 1st, 1898.
And the party of the second part, for itself, its successors and assigns, agrees that during said term it will deliver to the party of the first part for slaughtering all hogs which it may have for slaughtering; and will do no slaughtering in Honolulu, nor employ others to do it provided said party of the first part performs the same in a manner satisfactory to the party of the second part; and will pay to the party of the first part the sum of forty cents (40) per head for each hog slaughtered for it, the same to be payable monthly; and will provide the necessary feed for all of their hogs while on said premises.
And the party of the first part in consideration aforesaid, for himself, his executors, administrators and assigns, agrees that for the said price he will perform all the labor of feeding and caring for said hogs while on his premises until slaughtered; that he will furnish water for said hogs, and will bear all expenses while they are on said premises, other than the costs of feed; and will slaughter all of such hogs as he is directed to slaughter in a skillful and workmanlike manner and to the satis*470 faction of tbe party of the second part, and at such times as he may be directed; and further agrees that during said time he will allow no slaughtering to be done on his premises at Iwilei other than the hogs of the party of the second part.
And it is mutually agreed that in case said F. F. Porter in any respect fails to carry out his said agreements to the satisfaction of the party of the second part, that the party of the second part may continue to occupy the above demised premises for the term above named paying the rent of three hundred and sixty dollars per annum.”
Subsequently another contract was made as follows:
“Honolulu, H. L, February 17, 1896.
“In consideration of ¥m. McOandless and E. O. Winston purchasing the eight (8) shares held by me in the Hawaiian Pork Packing Oo., Ltd., I hereby grant them the privilege of removing pig pens and other property belonging to the above company at any time that they may desire as well as all other privileges in regard to right of way, &c., as exist at present in accordance with my agreements made with the Hawaiian Pork Packing Co., Ltd., and further that in the event of the slaughtering of hogs not being done to the satisfaction of Wm. McCandless and E. C. Winston they shall be allowed to conduct their own slaughtering business without any charge for rent of premises, provided that they shall conduct the same on other premises than those referred to in last clause of agreement dated March 10, 1892.
(Sig.) F. F. Porter.”
Defendant quit the premises mentioned in these contracts and discontinued delivering hogs to plaintiff for slaughtering and at the trial attempted to justify by showing that plaintiff did not do his work to its satisfaction. The question raised by the exceptions is, what significance has the word “satisfaction” in these contracts? It is usually difficult to construe a contract which is to be performed by one to the satisfaction of another. There are various constructions that may be put upon such a
This contract differs from that in the Raiolins’ case. In each case good work was contemplated — not merely work to the satisfaction of whims or peculiar tastes. But in the present ease there is much more than there was in that case to show that the defendant was to be sole judge of the satisfactoriness of the work. In the present case the word “satisfactory” or “satisfaction” occurs three times in the first contract and once in the second, and in three of these instances it is unqualified in terms. In the other instance it is coupled with the words “skillful and workmanlike manner,” used with reference to the slaughtering of hogs. There were other things to- be done by the plaintiff besides slaughtering hogs, such as feeding, watering and caring for them, all of which, by the last paragraph of the first agreement, the plaintiff was to do to defendant’s satisfaction without -express qualification. If these were the only differences, possibly the contract in question could not be distinguished from that in the Raiolins’ case. But there are more important differences. The Raiolins’ contract was primarily a contract of employment, the employee to perform his work in a skillful and workmanlike manner and to the satisfaction of the employer and to be paid so much a month therefor. The present contract is primarily a lease, the rent to consist of payments at a certain rate for slaughtering, feeding, watering and caring for hogs, but with
The other'exceptions need not be considered. Those taken to such rulings and instructions of the trial judge as were based on the theory that the options mentioned were exercisable only in case the work was not done in a proper manner without reference to whether it was so done in the opinion of the defendant, are sustained.
One of the exceptions was taken to the overruling of a demurrer to the complaint. In the complaint there is a general allegation of performance which if standing alone might be sufficient under the circumstances of this case. But the plaintiff ■ undertook in addition to this to aver performance specifically
A new trial is ordered.
Dissenting Opinion
DISSENTING OPINION OF
While I agree with the majority of the Court that the jury should have been instructed to find whether the evidence showed that the plaintiff’s-undertakings in the contract between the parties were in fact executed by plaintiff to the satisfaction of the defendant, and not, as charged by the Court, that it was for the jury to determine whether the work was done by plaintiff in “a good and workmanlike manner,” and that if it was so done the defendant was bound to be satisfied with it, I do not think a new trial should be ordered.
The plaintiff had the burden upon him and put on evidence to show that he did the work contracted for in a “good and workmanlike manner,” as evidence to the jury that defendant was not in fact dissatisfied with plaintiff’s performance of the contract, but that defendant’s refusal to continue it, on the ground of dissatisfaction, was not bona fide; and on a new trial the same issue would go to the jury, to wit, whether plaintiff had performed his work properly as evidence as to whether the defendant was in fact satisfied with it. In my opinion the direction of the Court was harmless error.