DISSENTING OPINION OP
FítEAR, J.I respectfully dissent. The Circuit Court, jury waived, found for the plaintiff for the interest, and against the plaintiff for the principal sum sued for. The plaintiff excepted “to the refusal of the court to find for her or to order judgment for her for the principal sum of $26,173 claimed by her in her declaration, and to the ruling of the court that the evidence *359failed to authorize such finding and judgment.” She then moved that in place of the judgment ordered for her for the interest, judgment he entered for the full sum of the principal and interest on the following grounds:
“1. Decedent’s will, which is in evidence, is prima facie evidence that his circumstances allowed him during his lifetime to pay said principal sum.
“2. Defendants’ inventory, which is in evidence, is prima facie evidence that decedent’s estate allowed defendants to pay said principal sum.
“3. Defendants by their plea of general issue, have admitted assets, and are thereby precluded from claiming any benefit from the testator’s conditional promise, or that they have not assets with which, to pay the principal sum.
“4. Defendants are obliged by law to pay all the decedent’s legal obligations pro rata, except preferred debts, if the estate is insufficient to pay them all in full. The principal sum here claimed, as acknowledged by decedent in the agreement declared on, was due and owing by him to the plaintiff. The necessity of winding up the decedent’s estate, the statute of limitations of claims against the estates of persons deceased dispense with and do not require nor permit the postponement of plaintiff’s claim until it shall appear that after all other claims have been paid in full there shall remain sufficient property wherewith to satisfy the plaintiff’s claim.”
This motion was denied and the plaintiff excepted to the denial.
These are the only exceptions brought here by this bill. Plaintiff’s counsel states in his brief that the second exception (to the denial of the motion for judgment) is practically the same as the first exception (to the refusal to find for the plaintiff for the principal sum, and to the ruling that the evidence failed to authorize such finding). It will, therefore, be necessary to consider only the points raised specifically by the second exception. These are four in number. I will first touch upon *360the third and fourth, points — which are not referred to by the majority of the court.
The argument on the third point is that the executors, in ■order to avail themselves of the defense of “nulla bona” or of “plene administramt” should have set it up by special plea. Without expressing an opinion as to whether these defenses, to be available should be specially pleaded under our statute or practice, it is sufficient to say that in this instance the executors do not rely on either of these defenses. The plaintiff declared on a conditional promise, namely, Dr. Trousseau’s promise to pay a sum of money if and as soon as his circumstances allow it, and alleged fulfillment of the condition. A general denial was a sufficient traverse of the allegation of the fulfillment of the condition, and the burden was on the plaintiff to sustain the allegation. The fact that the condition happened to be the possession of sufficient assets by the decedent did not make it different from any other condition precedent, the fulfillment of which must be shown. The defense relied on was not the affirmative one of “nulla bona,” but a mere denial of the truth of a necessary allegation made by the plaintiff.
The argument on the fourth point is substantially that Dr. Trousseau’s death, by rendering impossible the fulfillment of the condition precedent, makes it unnecessary to prove fulfillment; in other words, that the conditional promise became absolute upon his death. A promise to pay a sum of money upon the happening of an uncertain event, and which remains •conditional so long as there is doubt whether the event will ever happen, does not become absolute when it becomes certain that the event will never happen. In re Bethell, L. R. 34 Ch. Div. 561, was a case similar to this, in which the action was brought after the death of the promisor, but the court held that proof must be made of the promisor’s ability to pay during his life.
As to the first point, I agree with the majority of the court that decedent’s will does not show that his circumstances allowed him during his life to pay the principal sum.
*361As to the second point also, I agree with the majority of the court that the executors’ inventory does not show that decedent’s estate allowed them, the executors, to pay the principal sum. It is true, as contended hy plaintiff’s counsel, that the inventory is prima facie evidence of such assets as are shown hy it, but it must be taken as a whole, and, so taken, it shows, “total assets, $35,914.01,” and “total liabilities, $19,843.61,” of which liabilities $15,000 are notes secured by mortgages, and therefore preferred claims. Thus, including uncollected accounts as assets, and without deducting the unsecured claims, there remain only $20,914.01, which certainly cannot be said to allow the payment of the principal sum, $26,113; and this is the most favorable view for the plaintiff that can with any show of reason be asked to be taken of the inventory. If the inventory is not correct, or if the decedent had been in fact at any time after the execution of his agreement able to pay the principal sum, the plaintiff should have adduced further evidence to show it.
It would seem as if there were nothing further to be said, except that all the exceptions should be overruled, since all the points raised by these exceptions have been disposed of adversely to the plaintiff; but the majority of the court have come to the conclusion that a new trial should be granted upon consideration of a point which, so far as I can see, is not raised by the exceptions, and under the circumstances I deem it my duty to express my views on this point also.
As I understand it, the majority of the court decide that Dr. Trousseau was bound to make payments on account of the principal sum as fast as he could; that failure to pay any amount on account when he could, rendered him at once liable for the whole principal sum; that the inventory is evidence that he could pay something on account during his life, and that- as the trial Judge did not take this view of the case a new trial should be ordered.
Let us consider these propositions in their inverse order. Eirst, that as the trial Judge did not take this view of the case a new trial should be ordered. The attention of the trial Judge *362was not called to this view of the case, and no exception was taken to his omission to consider it, and therefore it should not he considered by this court. See Norris v. Herblay, 9 Haw. 514; Byrne v. Allen, ante, p. 338. The trial court ruled as a matter of law that'ability to pay the principal sum must be shown, to which ruling no exception was taken; the exception in regard to the inventory was taken to the refusal or failure to find as matter of fact that the inventory was sufficient “evidence that decedent’s estate allowed defendants (the executors) to pay said principal sum.”
Secondly, that the inventory was evidence that Dr. Trousseau could pay something on account during his life. I agree with the majority of the court that the inventory was evidence of this fact; and, for that matter, the mil also was sufficient evidence of the fact, for it refers to most of the property covered by the inventory. But this fact should not be considered on these exceptions, and it is immaterial in vieAV of the law as I find it.
Thirdly, that failure on the part of Dr. Trousseau to pay something on account when he could rendered him at once liable for the whole principal sum. I know of no proposition of law to the effect that, where one promises to pay a sum of money in installments, failure to pay one installment when due makes all the other installments or the whole sum due at once. Stipulations are sometimes made to that effect, as often in mortgages, but in the absence of such stipulation an action lies for such installments only as are due and unpaid. Whether Article 8 of the agreement in question amounts to such a stipulation is a question neither raised by these exceptions nor relied on by counsel. If it were such a stipulation it would be unnecessary to consider the inventory at all, for it is undisputed that one installment of 5,000 francs expressly provided for in the agreement has not been paid. Even if, therefore, Dr. Trousseau was required to make payments on account when he could, then judgment could properly be given for only such an amount as the evidence shows he could have paid; it could not properly be given for the whole principal sum upon a showing merely that he could have paid a part.
*363But, fourthly, I cannot see how the agreement can be construed as binding Dr. Trousseau to make payments on account of the principal sum as fast as he could. There can be no question that the agreement contemplates that payments may be made on account, but this is very different from the proposition that they must be made. Agreements are often made for the payment of a sum of money at a particular time with the privilege (without the obligation) of paying the whole or a part at an earlier date.
Dr. Trousseau’s only promise in this respect was to' pay the “total amount” if and as soon as his circumstances allow him. This cannot be construed to mean that he must pay “each part,” if and as soon as his circumstances allow him. Similar promises have often been made, but such, construction has never been placed upon them. See, for instance, the case of Salinas v. Wright, 11 Tex. 572, a case very similar to this, in which there was an absolute promise coupled with a similar condition, as follows: “I am indebted to John Wright in the sum of one hundred and forty-eight dollars; which sum I bind myself to pay, as soon as circumstances will permit me.” See also In re Bethell, L. R. 34, Ch. Div. 561; Mattocks v. Chadwick, 71 Me. 313; Shepherd v. Thompson, 122 U. S. 239; Bidwell v. Rogers, 10 Allen 438; Laforge v. Jayne, 9 Pa. St. 412. And in the case at bar such construction appears not to have been thought of until suggested by a member of this court.
The circumstances of the case also bear out this view. Madame Trousseau had brought an action against Dr. Trousseau upon a Drench claim some fourteen years old. There must have been some doubt on both sides as to the result of the suit. The parties thought it best to compromise. Dr. Trousseau acknowledged an indebtedness of a certain amount and promised to pay part of it at once, the balance when his circumstances allowed it, and meanwhile a certain amount annually as interest. In consideration of this, Madame Trousseau agreed to discontinue her suit and accepted these promises, part of them absolute, part conditional, in place of her old claim. If the parties chose to make *364such agreement they had a right to do so, and cannot complain now if they are held to it. One installment of 20,000 francs was expressly agreed to he paid at a definite time, immediately; so of the installments as interest, annually; hut the payment of the balance of the principal was expressly made conditional upon Dr. Trousseau’s circumstances allowing him “to discharge the total amount.” There could have been no doubt that at that very moment he was able to pay something more than the exact 20,000 francs agreed to be paid at once, or that he would very soon afterwards be able to pay something on account, and if so, he could under the ruling of the majority of the court have been sued forthwith, or at least as soon as it could be shown that he could have paid something on account and had not done so. This would practically deprive him of all benefit of his contract. The parties certainly have not during these sixteen years of the contract placed any such construction upon it, namely, that failure to pay on account, when able, any amounts (whether large or small) would authorize either repeated suits for such sums as could have been paid or a suit at once for the whole principal sum. ISTo middle ground can be taken, as, for instance, that payments must be made, not in small sums as they come in from day to day, but in reasonably large sums from time to time when the accumulations have become large enough to make a substantial payment, for there is no criterion to go by for ascertaining when the accumulations would be large enough to call for a payment, and no such position can be supported by anything in the agreement.
Contracts of the kind in question have often been made and have often been construed by courts. Two views have been taken. One is that the condition is so uncertain as to be void, thus leaving the promise absolute and permitting recovery at once without any showing of ability to pay. This view is held by only a few courts and is certainly against the whole tenor of the' agreement in question. The other view is that recovery may be had only upon showing fulfillment of the condition, namely, ability to pay the principal sum. This is the prevailing view. *365ISTo middle ground has ever been taken elsewhere so far as I have been able to ascertain.
Where a just debt exists the court will endeavor to grant relief if possible, but courts are bound to decide according to established rules of law and agreements as made by the parties themselves, and to deny relief sometimes in particular cases where they would prefer to grant it, as sometimes where a just debt has become barred by the statute of limitations. In this particular case as it comes to this court I do not see how the plaintiff can prevail. This is not holding that she has no remedy at all, but only that she cannot prevail in this particular case upon this particular question.
It is argued that it is “an astonishing proposition that the plaintiff can have her interest money and not the principal.” This may be quite true where, as appears to be the case here, the interest sued for and allowed is not one of the installments of 5,000 francs expressly agreed to be paid as interest in Article 3 of the agreement, but is damages for the detention of the principal sum from the time when the principal sum was supposed, but not found by the court, to be due. The logical conclusion under these circumstances would be, not to make another error by allowing the principal sum,.but to correct the first error by disallowing the interest. This cannot, however, be done on this bill of exceptions, as the plaintiff did not except to the allowance of interest. If the interest sued for and allowed were that provided for in the agreement, it would of course not be astounding to allow it without the principal, for, as above stated in regard to an installment of principal, it is proper to sue for an installment of interest when due, without suing for the principal, for in such cases failure to pay the interest when due does not render the principal due or authorize judgment for it.