
    HATTIE K. VIVICHAVES v. Y. AKAU.
    Exceptions erom Circuit Court, First Circuit.
    Argued August 3, 1910.
    Decided August 5, 1910.
    Perry and De Bolt, JJ., and Circuit Judge Cooper in place ok Hartwell, C.J.
    
      Evidence — agreement to reduce rent under lease.
    
    The evidence in this case held sufficient to sustain a finding that hy the terms of an oral agreement by a lessor reducing the rent of the demised premises the reduction was to continue in effect only until otherwise directed by the lessor.
   OPINION OF THE COURT BY

PERRY, J.

This is ail action instituted in the district court of Honolulu for the sum of $15, balance of rent claimed to be due for the month of November, 1909. On appeal the circuit court, jury waived, found for the plaintiff for the amount claimed and judgment was entered accordingly. The defendant excepts to the decision and the judgment on the ground that they are contrary to the law and to the evidence.

It was admitted at the trial that the defendant is the holder of a lease from the plaintiff for twenty years from June 1, 1900; that the rent reserved by the lease is $55 per month; that from December 1, 1903, to June 30, 1904, the plaintiff accepted $50 per month in full satisfaction of the rent, from July 1, 1904, to November 30, 1904, $45 per month, and from November 30, 1904, to October 31, 1909, $40 per month; that for the month of November, 1909, the defendant paid to the plaintiff $40 as rent but refused to pay the additional sum of $15 claimed by the plaintiff. The defense offered at the trial and on these exceptions is that in or about the month of December, 1904, the plaintiff, through an agent, in consequence of a complaint by the defendant that he was for certain reasons stated unable to pay more than $40 per month rent, agreed to reduce the rent to that sum. The defendant was the only witness who testified in support of this alleged agreement. On the other hand, the plaintiff’s agent testified, “I told him I would for the time being help him out” by reducing the rent to $40 “and he says All right,’ ” and added that he was positive that he used the words “for the time being.” The trial court in its opinion said, “The only question is to determine whether or not the reduction of rent reserved was made in December, 1904, as claimed by the tenant, defendant herein. The defendant testified that at that time no reference was made to the reduction of the area of the land leased as the reason for the claim for reduction, but does say that he desired a reduction because of hard times. At that time, December, 1904, the lease had sixteen years yet to run, and I do not imagine it was in the mind of either party that the hard times would continue for the remainder. of the term of the lease, 16 years. In my judgment no matter what was said at the time of this acceptance of $40 for the month previous it was not consented that this reduction was to continue during the entire balance of the term of the lease.” This is in effect a finding that the agreement of the parties was, not that the rent was thereby reduced for the remainder of the term of the lease, but that it was reduced only for the time being, in other words, that under the terms of the agreement as made the lessor was at liberty at any time to require the payment of the full amount of the rent reserved under the lease. The evidence was contradictory, — perhaps even the testimony of the plaintiff’s agent was contradictory in itself —but there was certainly evidence to support the finding as made and under the repeated decisions of this court the fin ding cannot under the circumstances be disturbed. Under the finding, the plaintiff was at liberty in November, 1909, to require the payment of rent at the rate of $55 per month.

Since the trial court found that an agreement was not made to reduce the rent for the remainder of the term it is unnecessary to say whether the sale by the lessor to the Territory of a strip of the demised property for street purposes constituted a consideration for the agreement or whether a valid consideration is otherwise.' shown by the record.

Geo. 8. Gurry (A. J. Judd with him on the brief) for plaintiff.

A. L. G. Atkinson (Atkinson & Quarles on the brief) -for defendant.

The exceptions are overruled.  