Hong Kim v. Hapai
| Decision Date | 14 November 1899 |
| Citation | 12 Haw. 185 |
| Parties | HONG KIM v. M. KAHILO HAPAI (W). |
| Court | Hawaii Supreme Court |
Submitted September 23, 1899.
EXCRETIONS FROM CIRCUIT COURT, FOURTH CIRCUIT.
Syllabus by the Court
The plaintiff, a lessee, alleged that before he accepted his lease, his lessor represented to him that the demised premises were bounded on one side by " Bridge Street " and also that the boundary of said premises on that side was described in the lease as running along the side of " Bridge Street, " but that he afterwards found that the land mentioned as " Bridge Street" belonged to private parties. He contended that a covenant or warranty that the land described as " Bridge Street" was a public street was implied from the description in the lease. Held, on demurrer,
That an action of tort for such false representations and an action for breach of such covenant, if any, could not be joined.
That while the lessor and those claiming under her might be estopped from claiming that there was no such street, if she owned the land described as a street at the date of the lease, yet no covenant that such a public street existed could be implied from the description of the demised premises in the lease.
That the complaint in so far as it was based upon the false representations made before the acceptance of the lease was insufficient in that it failed to show that the lessor made the representations with knowledge of their falsity (or without knowledge as to whether they were true or false) and in contemplation of defendant's relying upon them and that the defendant did rely upon them.
W. S Wise for the plaintiff.
Le Blond & Galbraith for the defendant.
OPINION
This case comes here, by consent of the trial judge under the provisions of Sec. 74, Ch. 57, Laws of 1892, as amended by Act 40, Laws of 1898, on an exception to an interlocutory order overruling a demurrer.
The plaintiff alleges that he leased from defendant a certain described piece of land at Hilo, Hawaii, for twenty years beginning January 1, 1898, at an annual rental of $200 and that after entering into possession he expended about $1800 in improvements thereon; " that before and at the time of making said lease the defendant represented to plaintiff that the premises above described were bounded on the westerly or mauka end by a Public Street or Road as in said lease expressed, " but that, as he alleges on information and belief, the land immediately adjoining the said premises on the westerly end is not a public street or road but is private property; and that in March, 1899, certain persons acting, as plaintiff is informed and believes, under the direction of one John Scott erected a close fence about fifteen or eighteen feet high and fifty feet long on the westerly side of said improvements and about two feet distant therefrom and upon the land so represented by defendant to plaintiff and designated in said lease as a road, namely, " Bridge Street." A copy of the lease is attached to and made a part of the complaint. Plaintiff claims $5, 000 damages.
The demurrer is based on two grounds: (1) that the...
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