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Argument for Appellants.

and fourth grounds, and divisions a and b of the third ground of demurrer.

Mr. David L. Withington, with whom Mr. William R. Castle, Mr. W. O. Smith, Mr. A. Lewis, Jr., and Mr. C. H. Olsen were on the brief, for appellants:

The central purpose of the agreement was to "continue" an established institution, the keystone of a system with defined and well-known aims, the chief being the promotion of religion by instruction in definite religious truth.

The agreement was not one which the parties looked upon as setting forth in haec verba the final form of the agreement. The resolutions of the Mission were directed to be transmitted to the government.

Both parties contemplated that the language used was not a definite and final expression such as is contained in that class of documents from which the rule of interpretation of written documents arose, namely, engrossed writings, and all the more this Court should look for the spirit of the agreement, the situation of the parties, their motives, their conduct, their after-construction of the agreement, and putting itself in their place construe it as the parties construed it.

Parol evidence is necessary in order to apply the contract, for it was undoubtedly a part of the contract that an existing institution should be continued, and it is a matter of fact to be determined by parol evidence what that existing institution was.

This evidence shows that the promotion of religion by the inculcation of a definite system of doctrine was the central purpose of the Mission and of the seminary.

In resorting to parol evidence to determine the character of the institution to be continued, it is necessary to examine into its source, the purpose of its establishment, its aims, its methods, which inquiries reveal that the Mission from which it sprung believed in a system of theology, and believed absolutely and conscientiously that that system could be applied to the gov

Argument for Appellants.

206 U. S.

ernment of a state and was the only perfect rule of guidance, particularly for a savage nation in its rudimentary development to civilization and Christianity. Therefore, they purposed to found in Hawaii a theocracy in which the Scriptures as interpreted by their creed should be the fundamental law, to inculcate which they established a system of schools in which the study of the Scripture and of religious truth was the primary purpose, of which system the Lahainaluna Seminary, from which preachers and teachers of that truth should go forth, was the keystone.

This is consistent with the conduct of the parties at the time, their declarations in the correspondence and the construction which has been put upon the agreement in after years. Can it be, when the Mission has been lulled into security by the assurance of the Hawaiian government as late as 1865 that there was no misunderstanding as to the construction of the contract, that after forty years longer adherence it can now be repudiated?

A term can be read into a contract from the surrounding circumstances. Bradley v. Packet Co., 13 Pet. 89.

Extrinsic evidence is admissible, of all the circumstances surrounding the author of an instrument, to explain the sense in which he understood it. Reed v. Merchants' Mut. Ins. Co., 95 U. S. 23.

Even if there is no provision in the contract, evidence of the circumstances may be offered to show that such was a part of the contract. Field v. Munson, 47 N. Y. 221; Shouse· v. Doan, 39 Florida, 95; Savings Bank v. Fraze, 9 Ind. App. 161; Staples v. Lumber Co., 56 Minnesota, 16; O'Dea v. City of Winona, 41 Minnesota, 424; Jennings v. Whitehead Co., 138 Massachusetts, 594; Erskine v. Adeane, L. R. 8 Ch. 756; Katz v. Bedford, 77 California, 319; Gas Co. v. Braddock Wire Co., 155 Pa. St. 22; Cleburne Water Co. v. Cleburne, 138 Tex. Civ. App. 141; Nilson v. Morse, 52 Wisconsin, 240. And see 6 Eng. Ruling Cas. 169.

The instruments construed as a whole make it a necessary

inference that the maintenance of religious instruction and training in the doctrines of the mission were a part of the contract, and this term will be read in. 2 Page on Contracts, 1740, § 1118.

Courts have even gone so far as to hold that where the contract speaks of one, the plural can be inferred. Halt v. First National Bank, 133 Illinois, 234. So a conveyance for use as a burial place for a member of the Roman Catholic church in consecrated ground would restrict the lot holder from interring therein any person not recognized by the church authorities as a Catholic, although no such clause was in the agreement. Dwenger v. Geary, 113 Indiana, 106.

Mr. Lorrin Andrews, Mr. E. C. Peters and Mr. M. F. Prosser, for appellee, submitted:

Such conditions as were attached to the transfer of Lahainaluna Seminary were conditions subsequent.

Conditions subsequent are not favored in law and are strictly construed as against the grantor and nothing will be taken by way of intendment in favor of the grantor. 4 Kent's Com. 138; Woodworth v. Payne, 74 N. Y. Rep. 196–199.

It does not appear by the record that any of the conditions of the transfer have been broken.

The condition that "it shall not teach or allow to be taught any religious tenet or doctrine contrary to those heretofore inculcated by the mission which we represent, a summary of which will be found in the Confession of Faith herewith enclosed" certainly is not shown to be broken by the pleadings; it would require an allegation that religious doctrines contrary to the adopted creed were taught. In no other way could a breach of the foregoing condition be shown.

This leaves the question whether the agreement to teach sound literature and solid science was broken by failure to teach those branches of learning otherwise than they would require to be taught in a technical school and school of agriculture.

An agreement to teach solid science is not violated, but is observed, by teaching applied science relating to agriculture. The science of agriculture cannot be taught without imparting at the same time instruction in the literature relating to the science. It is not apparent why such literature, so taught, is not as sound or as valuable as are literary studies undertaken by themselves, or that the agreement is broken by teaching solely that literature which is limited by the study of science.

When the performance of conditions subsequent is prevented by the act of God or becomes contrary to law by reason of the transfer of the territory or change of government, failure to fulfill such conditions will not work a forfeiture of the estate. United States v. Arredondo, 6 Pet. 745; Scoville v. McMahon, 62 Connecticut, 378; Wheeler v. Moody, 9 Texas, 371-376.

MR. JUSTICE MCKENNA, after making the foregoing statement, delivered the opinion of the court.

The contentions of the parties are sharply in opposition as to the agreement and the necessity and competency of extrinsic evidence to explain it. Appellee contends that we are confined to the letter of the agreement, and so confined its conditions have been fulfilled. In other words, that "sound literature and solid science" are still cultivated, and that no religious tenet or doctrine contrary to those heretofore inculcated by the Mission is taught. Or, to express the contention in language other than that of the agreement, that a school devoted to one subject of secular science and which excludes all religious teaching was contemplated by or is permitted. by the agreement. Opposing these views, appellants contend that a mere technical school does not fulfill the agreement; that the terms of the agreement require the "inculcation of general learning and knowledge," accompanied with religious instruction in accordance with the confession of faith submitted to the Hawaiian government. And, it is insisted, that if there is any

thing doubtful in the agreement, it may be interpreted by the circumstances which preceded it and the immediate and longcontinued practice under it. If we may resort to those circumstances and that practice there cannot be a shade of doubt as to the intention of the parties. It is insisted, however, by the appellee that the agreement is clear and unambiguous and that it does not present a case for the resort to extrinsic evidence. We cannot concur with this view. There is quite a range of meaning in the words "sound literature and solid science." To interpret or specialize them and make definite application of them would certainly receive aid from the practice of the parties. It is contended by appellant that there was a close connection between them and the "definite system of doctrine" which was the "central purpose of the Mission." We, however, need not dwell further upon this contention, though a plausible argument has been advanced. to sustain it, and we pass to the next controverted contention. The words of the agreement are that the government "shall not teach or allow to be taught any religious tenet or doctrine contrary to those heretofore inculcated by the Mission, a summary of which will be found in the confession of faith herewith enclosed Were these words all there was of prohibition and purpose as to religion? May we believe that it became suddenly the purpose to change an institution which had had its impulse and foundation in religious zeal to convert the Hawaiians to Christianity and to educate young men to be "teachers of religion," to one simply literary and scientific and nonsectarian? Had the belief of the Mission in its form of Christian faith become so indifferent that it would transfer a seminary instituted for the propagation of that faith with no other condition than that contrary tenets should not be taught? There is not a syllable in this record to justify such assumptions. It must be remembered that we are considering a transaction which occurred in the Hawaiian Islands in 1849, and by the conditions of that time were the acts of the parties induced. Besides, the agreement is not in a formally executed