1 Haw. 43 (Haw.Super. 1851), Macfarlane v. Gilmore
|Citation:||1 Haw. 43|
|Opinion Judge:||LEE, CHIEF JUSTICE|
|Party Name:||HENRY MACFARLANE v. GEORGE GILMORE.|
|Attorney:||Mr. Montgomery for plaintiff. Mr. Burbank for defendant.|
|Judge Panel:||LEE, CHIEF JUSTICE|
|Case Date:||January 01, 1851|
|Court:||Superior Court of Hawai'i|
Syllabus by the Court
An action cannot be sustained against one only of several joint contractors.
The vendor of a ship cannot recover in an action for the purchase money, until he has first tendered a good and sufficient bill of sale.
This was an action brought to recover $900 and interest, on a contract.
It appeared that in December last the plaintiff entered into a written agreement with the defendant for the sale of the schooner " Snake." Macfarlane wrote out the agreement, binding himself to sell the vessel to Gilmore, and deliver the same on the morrow or whenever it might suit the defendant. Gilmore wrote across the face of the writing, " I hereby bind myself to stand by this agreement, " and signed the same. Afterwards he procured the signature of F. R. Vida under that of his own. The next day the " Snake" was delivered into Gilmore's possession, and he delivered her into the hands of a ship carpenter for repair. Subsequently he abandoned her and declined to fulfill his contract.
The counsel for the defendant made the following points: 1. The plaintiff cannot recover in an action against Gilmore alone, but should have brought his suit against Gilmore and Vida. The contract is joint on the part of Gilmore and Vida, and they cannot be severed in this action. 2. The...
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