
    F. HARRISON and A. V. GEAR v. J. H. BRUNS.
    EXCEPTIONS FROM CIRCUIT COURT, FlRST ClRCÜIT.
    Submitted July 14, 1896.
    Decided July 29, 1896.
    Judd, C.J., Frear and Whiting, JJ.
    If A and B make an oral contract, by which A is to buy land by auction upon the joint account of both in equal shares, the contract is within the statute of frauds, and after the land has been conveyed to A, B cannot maintain an action for breach of contract.
   OPINION OP THE COURT BY

WHITING, J.

Tbe declaration avers an agreement between tbe plaintiffs and tbe defendant “whereby they agree to purchase tbe lease” of certain government premises in Honolulu at public auction, which tbe defendant, “in pursuance of said agreement,” purchased, and thereafter did instruct James A. King, Minister of the Interior, to execute the lease to plaintiffs and defendant according to said agreement; that thereafter the defendant, contrary to said agreement, and after plaintiffs had pursuant to said agreement been put to great expense and inconvenience, and plaintiffs being at all times ready to perform all the conditions of said agreement upon their part, wholly refused to carry out his part of said agreement, and induced the said James A. King to execute a lease of said premises to him, said defendant. The plaintiffs claim damages for breach of the alleged agreement.

The case was returnable at the November term, 1894, of the First Circuit Court, and defendant’s answer was a general denial, but at the June term, 1895, tbe defendant amended bis answer as follows: “Said defendant, by leave of court, amends bis answer by adding thereto tbe following notice: Tbe defendant gives notice that among other defenses be relies upon tbe statute of frauds.”

Tbe trial was held at tbe February term, 1896, and by direction of tbe court tbe jury returned a verdict for tbe defendant.

Tbe Minister of tbe Interior duly advertised for sale at public auction a lease of a government lot on tbe Esplanade in Honolulu, and at tbe sale tbe auctioneer, a clerk of tbe Interior Department, knocked tbe lease down to defendant and made an entry to that effect in defendant’s name alone at tbe time, be, tbe defendant, being tbe bidder.

Tbe plaintiffs offered to prove by oral testimony that defendant agreed with them that defendant would bid for and purchase tbe lease of land in question, and that be would purchase such lease for himself and tbe plaintiffs, and that defendant broke this contract and took tbe lease in bis own name, and refuses to let plaintiffs into a share, and for this breach they claim damages.

Tbe plaintiffs also claim that tbe alleged agreement was in tbe nature of a partnership; that defendant agreed with plaintiffs to purchase tbe lease and that tbe three should be partners in tbe lease, and that such an agreement was not within tbe statute of frauds and need not be in writing.

There is no evidence of any memorandum in writing to show tbe alleged agreement, and tbe court below held that tbe alleged agreement was for tbe purchase or sale of an interest in lands, and was within tbe statute of frauds, and declined to permit tbe alleged agreement to be proved by parol testimony.

Tbe Hawaiian statute of frauds, Sec. 1053, Civil Code, (Comp. Laws, p. 309) provides that “no action shall be brougbt or maintained in any of tbe following cases: * * * Fourth, upon any contract for tbe sale of lands, tenements or hereditaments, or of any interest in or concerning them, * * * unless the promise, contract or agreement upon which such actions shall be brought, or some memorandum or note thereof, shall be in writing, and be signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized.”

P. Neumann, for plaintiffs.

Hartwell, Thurston & Stanley, for defendant.

The alleged contract, for the breach of which the plaintiffs claim damages, is clearly a contract for the sale of an interest in lands, and within the statute of frauds, and no action can be maintained by plaintiffs for the breach thereof, the same being an oral contract, and the plaintiffs failing to prove any memorandum in writing such as is required by the statute.

Parsons v. Philan, 134 Mass. 109.
Fickett v. Durham, 109 Mass. 419.
Bailey v. Hewenway, 147 Mass. 327.

The plaintiffs claim to have excepted to the refusal of the court to admit certain evidence offered by them, but these exceptions are not set out in the bill of exceptions. The bill contains the following in reference thereto: “At the trial, the plaintiff, to sustain his case, offered certain evidence, which was ruled out by the court, as will particularly appear from the transcript of the court reporter’s minutes of the proceedings at the trial of said cause, to which several rulings of the court the plaintiffs duly excepted.”

We have repeatedly held that all exceptions relied on by the appellant must appear on the face of the bill of exceptions, otherwise this court cannot consider them.

Secs. 72, 73 and 74, Chap. 57, Laws 1892.
Kapuakela v. Iaca, 9 Haw. 555.
De Fraga v. Port. Mut. Ben. Soc., ante, 128.
Haae v. Kuluwaimaka, ante, 347.

Exceptions overruled.  