I respectfully dissent. The only terms imposed upon Kenway by Heffelfinger's letter of February 19, 1927, were that Heffelfinger should receive $13,000 net for his property and that delivery of title for that price should be made at any time prior to April 1, 1927. Kenway secured a purchaser ready, able and willing to pay $14,040 for the property and on March 15, 1927, Kenway received from *Page 346 said purchaser a deposit of $1000 on account of said purchase price and a written agreement to pay the balance in cash on delivery of the deed. The agreement is upon a printed standard form of the Honolulu realty board and contains the provisions recited in the majority opinion. The sale was reported by Kenway to Heffelfinger the same day by radiogram, which was followed two days later by a letter reciting the fact of said sale at $13,000 net to the seller and enclosing a form of a deed to be executed by the defendant and his wife to the proposed grantees. The deed recited a consideration of $14,040 for the conveyance. The letter explained the added amount by stating that the writer would have to pay the cost of the deed and abstract and three months' taxes and would have to divide the commissions with another realty company. Request was made that the executed deed be returned to the Bank of Bishop Company to be delivered upon payment of the full amount of the purchase price.
The evidence shows that on March 8, 1927, a cablegram was sent defendant by C.W. Winstedt asking for terms upon which said lands could be purchased. On the following day defendant wrote Winstedt agreeing to consider an offer of $15,000 net for the same upon terms set forth in the letter. The same day defendant wrote Kenway notifying the latter that all offers to sell the lots in question were withdrawn. This letter Kenway received on March 18, three days after the execution of the agreement with K.C. Tong and Kenway's radiogram above referred to reporting the sale to Heffelfinger. On March 16 Heffelfinger wrote Kenway, giving as his reason for withdrawing his offer to sell the property that Heffelfinger's wife absolutely refused to sign the deed. On March 29 Heffelfinger wrote Kenway, saying in part: "Even tho you had not received the notice, your late procedure would not make the funds available, or place them in my possession *Page 347 within the time limit. Consequently no opportunity given me for accepting the money prior to April 1st, which time I had use for the money." On April 13 Heffelfinger again wrote Kenway a letter from which the following excerpt is quoted: "No reason that we should deed this property to the Chinamen, when I am offered a better price, and an agreeable transaction all around." Heffelfinger's excuse, therefore, for not signing the deed appears from his correspondence above quoted. Nowhere does he give as his reason for nonperformance on his part that he had not been sufficiently assured of $13,000 net for his land and he offered no evidence to show that the $1040 to be received over and above that amount was not amply sufficient to pay for the certificate of title mentioned in the contract in addition to the items for the payment of which Kenway expressly acknowledged himself bound; nor did he claim or attempt to prove that Kenway was not financially able to pay the items for which he acknowledged liability in his aforesaid letter of March 17. That Kenway was under legal obligation to Heffelfinger to pay for the certificate of title as well as the proportion of the 1927 taxes and expenses referred to in his letter is shown by his statement in the same letter to the effect that Heffelfinger was to have $13,000 net, taken in connection with the circumstances above recited. In the agreement of Tong plus the agreement of Kenway, Heffelfinger was legally assured of the performance of every condition for which in his letter of February 19, 1927, to Kenway he agreed to deliver title to said land.
For the reasons above set forth I believe that the judgment of the circuit court should be sustained and defendant's exceptions overruled. *Page 348