25 Haw. 646 | Haw. | 1920
OPINION OP THE COURT BY
The petitioner-appellant instituted its suit in equity before the circuit court of the first judicial circuit to foreclose a mortgage theretofore executed to it by the respondent-appellee. At the conclusion of the hearing the circuit court rendered its decision dismissing appellant’s petition and from this decision and the decree entered thereon the appellant has perfected an appeal to this court. The mortgage contains the following clauses which are of importance in determining the questions now before us:
The main question involved in this case is whether under the facts above briefly outlined the appellee, the Hawaii Nosan Shokwai, Limited, became obligated to the Sumitomo Bank of Hawaii, Limited, in the amount of the drafts; or in other words, did the transaction create the relation of debtor and creditor between the parties. The court below held that it did not and dismissed appellant’s petition. The trial court disposed of the subject in the following language: “Do the drafts themselves create the relation of debtor and creditor between the respondent and the complainant? Most certainly not. The drafts were nothing more than the written demands of the respondent’s creditors, namely, the Japanese exporters, that it acknowledge its indebtedness to them, and, upon maturity, pay it. The complainant was merely the agent through which these demands were made. The receipt of the drafts by the complainant for presentation and collection did not substitute it as the creditor of the respondent in the place of those who had sold the goods to the
It was established by tbe testimony of Mr. Nakayama, rice-president and manager of tbe Sumitomo Bank of Hawaii, -that the purpose for which tbe mortgage was given by the appellee was to secure tbe payment of tbe foreign bills of exchange in question. This testimony was clear, direct and stands uncontradicted and it must be held to be conclusive notwithstanding it appears to have bad little or no weight with tbe trial court.
Tbe decree appealed from is reversed and tbe cause is