21 Haw. 583 | Haw. | 1913
OPINION OP THE COURT BY
This is an action instituted in the district court of Honolulu for the recovery of $150. Upon the rendition, in the circuit court on appeal, of judgment in its favor the defendant sought to have allowed as a part of its bill of costs, the amount of the attorney’s commissions authorized by R. L., §1892, to be taxed “in all actions of assumpsit.” The item was disallowed. The only question presented by the exceptions is whether this is an action of assumpsit.
The material allegations of the declaration are as follows: “That heretofore and on to wit, the 12th day of October, 1911, plaintiff and defendant entered into a certain written contract wherein and whereby it was covenanted and agreed that in consideration that plaintiff would perform as comedian with his dog at any of the theatres of the Honolulu Amusement Co., Ltd., at Honolulu, City and County of Honolulu, Territory aforesaid, for the term of three (3) successive weeks beginning with the 16th day of October, 1911, said defendant promised to pay said plaintiff as compensation for his services during said engage
If it were doubtful, in the light of these allegations, whether this was an action ex delicto or in assumpsit, the doubt would be resolved against the plaintiff, since he himself until the filing of the bill of costs evidently regarded it ás being in assumpsit. Whittenton Mfg. Co. v. Memphis Packet Co., 21 Fed. 896, 901. In his prayer for judgment he asks for attorney’s commissions, a prayer wholly inappropriate in any action other than assumpsit; and in argument on the subject of costs he contended, as certified by the trial court in the bill of exceptions allowed with plaintiff’s approval, that this was “an action for damages for breach of contract.” It is not necessary, however, to base the decision upon this ground. Assumpsit is an action for the recovery of damages for the non-performance of a parol contract, “It lies upon contracts, either express or implied by law, and gives the party damages in proportion to the loss he has sustained by the violation of the contract.” 3 Am. & Eng. Ency. Law 164:, 165. Although in its origin an action ex delicto and formerly classed among the actions on the case, it is now generally regarded as purely an action ex contractu and as a form of action distinct from case, 4 Cyc. 319-321; 2 Ency. PI. &