23 Haw. 813 | Haw. | 1917
OPINION OP THE COURT BY
The defendant was charged under five counts with having unlawfully attempted to remove certain sugar cane which was growing upon Lot No. 7, Kaiwiki Homesteads, District of South Hilo, County of Hawaii, with unlawfully removing the same, with attempting to aid and abet, and with aiding, abetting and assenting to the removal of the same by the Kaiwiki Milling Company, Limited, with fraudulent intent to place said sugar cane beyond the control of the Hilo Sugar Company, the mortgagee thereof, contrary to the provisions of section 3998 of the Revised Laws.
Upon the trial the prosecution had put in evidence an instrument executed on the 22d day of July, 1915, .by the defendant and the Hilo Sugar Co., which the prosecution claimed, and the defense denied, was a mortgage of the sugar cane to be planted by the defendant on his premises at Kaiwiki; also a bill of sale of the same cane by the defendant to the Kaiwiki Milling Co., Ltd., dated the 30th day of August, 1915. And evidence was introduced show
“This agreement, made this 22nd day of July 1915 by and between Murakami Tsunekichi, party of the first part, hereinafter called the Planter (and if the Planter consists of more than one person this agreement and all covenants binding on the Planter are both joint and several), and Hilo Sugar Company a corporation, party of the second part, hereinafter called the Plantation, Witnesseth:
“That Whereas the Planter proposes to plant and cultivate sugar cane during the term hereinafter specified upon certain lands situate in the District of Hilo, Island and Territory of Hawaii, thus described:
“Lot No. 7 Kaiwiki Homesteads,
“(7 Acres Caledonia Plant Cane, Crop 1917)
“And Whereas the Planter has agreed to sell and deliver to the Plantation all crops of cane which may be grown and matured upon said lands during said term, and the Plantation is willing to make certain advances to enable the Planter to plant, cultivate and harvest such cane, upon the security of such crops and of this indenture:
“Now Therefore, in consideration of the sum of Fifty Three 15/100 ($53.15) Dollars to the Planter loaned and advanced by the Plantation, the receipt whereof is hereby acknowledged, and in consideration of the agreements of*816 the Plantation hereinafter contained, and in further consideration of such loans and advances as at any time may be made by the Plantation to the Planter (whether in cash or in materials furnished or services rendered) for the purpose of assisting him to plant, cultivate and/or harvest such sugar cane, or otherwise under the security of this indenture, the Planter does hereby agree to sell, assign, transfer and deliver, and does hereby sell, assign, transfer and deliver to the Plantation all sound sugar cane (free from trash, tops, moisture, dirt or other refuse, and excluding all dry and sour cane), which may mature upon said lands during the term of two years from 22nd day of July 1915;
“To Have and To Hold unto said Plantation, its successors and assigns, forever.
“And for said consideration the Planter does hereby covenant and agree with the Plantation that he will pay to the Plantation, upon demand, said sum now loaned and advanced and all other and further sums which may be loaned and advanced or chargeable to him by the Plantation hereunder, together with interest thereon at the rate of eight per cent, per annum; and will well and truly pay all taxes, assessments and all other charges whatsoever, whether laid upon said crops or lands or otherwise laid, the non-payment of which might be prejudicial to the security or rights of the Plantation hereunder, and will do and perform every other matter or thing requisite to maintain the security of the Plantation hereunder; and will not, without the written consent of the Plantation, sell, assign or transfer by way of mortgage or otherwise to any person other than the Plantation said crops, or any part thereof, or interest therein, during the term hereof; and, when so required by the Plantation, will cut, and deliver to the Plantation at the flumes of the Plantation, on said lands, or at such other place or places as may be mutually agreed upon, all sound sugar cane (free from trash, tops, moisture, dirt, or other refuse, and excluding dry and sour cane) grown and matured as aforesaid during said term; and that all advances and all reasonable charges for materials furnished or services performed hereunder by the Plantation, for the account of the Planter, with interest thereon as aforesaid, shall be secured hereby and shall be a charge*817 against the purchase price of said cane, and deductible by the Plantation before any payments of such price are made to the Planter.
“And for said consideration the Planter does hereby grant to the Plantation, during said term, free of charge, all such rights of way over and across said lands as may be necessary, to take off the cane grown on said lands or on any other lands so located that such rights of way are necessary for taking off cane therefrom.”
Then follow certain provisions in regard to the furnishing to the planter of seed cane for planting and flumes for taking off the crop, concerning the quality of the cane, and the agreement of the plantation to purchase the- cane and specifying the price to be paid therefor based upon the price for the time being of ninety-six degree polarization sugar in New York City. And then follow these paragraphs:
“But in case of any default on the part of the Planter to well and truly pay, upon demand, any sum or sums advanced or chargeable to him hereunder, or otherwise to well and truly perform any or all the covenants and agreements by the Planter made herein, then the Plantation may at its election cancel this agreement, and recover from the Planter all such sums already advanced or chargeable to him hereunder, with interest as aforesaid, or may enter upon so much of the above described lands as may be cultivated in cane and take full possession of the same and of the crops growing thereon, and so long as may be necessary to reimburse itself in such sum or sums, not exceeding the remainder of the term hereof, may carry on, as though conducting its own business, the work of cultivating and harvesting such crops and any ratoon crops therefrom, charging to the Planter the full cost thereof, including labor, superintendence, materials and all such other proper costs, charges and advances, as it may deem reasonably necessary, with interest thereon as aforesaid — all of which shall be repayable under and secured by this indenture. All sugar manufactured from cane received or taken by the Plantation from such lands shall be credited to the Planter*818 at the prices aforesaid, add after all proper charges and deductions of every kind shall have first been made, the net balance, if any, remaining shall be made over to the Planter.
“Entry and operation by the Plantation as aforesaid shall not deprive the Plantation of the right to thereafter cancel this contract for any cause herein provided for, if it so elect.
“It is understood and agreed that payment at any time of all indebtedness of the Planter to the Plantation shall not operate as a cancellation of this agreement, but the same shall nevertheless continue in force during the full term herein specified.
“And it is mutually agreed that this indenture shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives and successors in interest.”
On behalf of the prosecution it is contended that the instrument is of a two-fold character, viz., (1) a contract for the sale of the cane therein named, by the defendant to the Hilo Sugar Co., for a period of two years from and after the 22d-day of July, 1915; and (2) a chattel mortgage securing (a) the repayment of $53.15, the amount therein acknowledged to have been received by the defendant, (b) future advances, if any, and (c) the performance of other covenants and conditions therein named to be performed by the defendant, including the covenant to sell cane to the Hilo Sugar Co. as set forth in said instrument. And counsel say that “An inspection of the instrument itself shows that it expressly purports to secure (a) and (b), and it was argued at the trial and is again urged in this court that said instrument should be construed to secure (c) as well. However, this last named contention as to (c) is in no way essential to the prosecution’s case, for if the instrument sufficiently secures the repayment of $53.15, as set forth in (a), the prosecution will not have to rely upon the hypotheses set forth in (b) and (c).” In this
We have examined the cases of Minnesota Oil Co. v. Maginnis, 32 Minn. 193, and Frankhouser v. Fisher, 54 Kan. 738, cited in the prosecution’s brief. Neither of them is on all fours with the case at bar. The latter is clearly distinguishable, and in so far as the former may be inconsistent with the views herein expressed we do not agree with it.
The circuit court is advised that the charge was not sustained by the evidence, and that the defendant’s motion for a directed verdict of acquittal ought to be granted.