Joseph McKenna

“ It is contended by appellants that the course of instruction in the institution comprised not only the usual topics belonging to secular learning, but included also direct religious teaching and training in the doctrine represented by the mission; that is, the doctrines of the Congregational and Presbyterian churches of the United States, and was expressed in a 'confession of faith,' which was attached to the agreement that transferred the property to the Hawaiian government. ”

“ Confining ourselves for the present to the condition respecting religious instruction, reading, '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 inclosed,' the following possible constructions of the language may be considered. ”

“ There is no evidence of any protest with regard to Lahainaluna or the course of study there from the American Board or from the Hawaiian Evangelical Association as bodies, but first objection is from the plaintiffs who are trustees of certain property rights under deed from the American Board.'
It is further found that 'technical and agricultural training have been prominent features of the school for over half of a century, and the emphasis laid on agricultural work in the past few years does not amount to a change in kind, but one in degree. ”

“ As we have said, the supreme court of the territory gave especial prominence to the ruling on extrinsic evidence, and made it contradictory to the agreement as expressed in the correspondence. This result was worked out, as it seems to us, by giving too much effect to the curriculum of the school after 1877. That, indeed, might be considered as tending to show that the agreement had been abandoned or its conditions waived, but not that it did not exist. ”

“ A confession of faith was inclosed. The government modified the proposal by reserving the right to pay $15,000, as an alternative to the reversion of the property to the mission if the government should not fulfil the conditions of the grant. ”

“ The grounds of their refusal we are not informed of, but it was a disavowal of the trust and a denial of the alternative obligation to pay the money. The right of election in the territory then passed to the plaintiffs, appellants here, and the bringing of the action was a sufficient exercise of it. ”

“ Lindsey, 45 Ind. 552, 567; 2 Washb. Real Prop. 16. A mere indulgence is never construed into a waiver of a breach of a condition. Gray v. Blanchard, 8 Pick. 284; Jackson ex dem. Bronck v. Crysler, 1 Johns. ”