16 Haw. 548 | Haw. | 1905
OPINION OF THE COURT BY
This is an action upon a note made by the defendant j>ay-able to the plaintiff for $350 and interest. The plaintiff proved not only the note, its non payment, etc., but also that after its maturity and while still in his possession and unendorsed it was accidentally destroyed by fire. At the close of the plaintiff’s case, the defendant offering no evidence, a verdict was directed for the plaintiff. The defendant brings the case here on a number of exceptions,' which raise four points.
1. It is contended that the court erred in allowing evidence as to the contents of the note before its loss or destruction was proved. The plaintiff, however, offered this evidence for the purpose of identifying” the note in order to make possible or facilitate subsequent proof of its destruction and undertook to make proper connections at a subsequent stage of the trial. The order of proof was a matter resting in the discretion of the trial judge not subject to review by this court except in case of abuse. There was clearly no such abuse in this case.
2 and 3. It is further contended that an action at law cannot be maintained on a lost or destroyed instrument; also that, if the law is otherwise on that point, such an action at least cannot be maintained except upon giving the defendant a bond of indemnity. In an action upon a note the defendant is entitled to the production and surrender of the note, but such production or surrender would be impossible in case the note were lost, and yet the payee ought not to lose his rights because the note was lost, provided the defendant could be sufficiently protected against being required to pay a second timo at the suit of a holder in good faith for value. Such protec
4. It is contended lastly that proof of destruction should be clear and satisfactory, that the question of destruction was for the jury and that the court erred in directing a verdict for the plaintiff. The evidence of destruction was clear and satisfactory in this case and no attempt was made to overcome it. A case, of course, should not be taken from the jury when there is any substantial evidence which would support a finding adverse to the party requesting a directed verdict, or when, if the direction is for the plaintiff, his evidence is not clear and satisfactory, but that a verdict may be directed in a clear case is well settled. In the nature of things, while verdicts directed for defendants are not uncommon, it is rare that a verdict is directed for a plaintiff. There is no reason, however, why this should not be done in a proper case and that it may be done is recognized by the authorities. See Anthony v. Wheeler, 130 Ill. 128; Underwood v. Stack, 15 Wash. 497. There is no reason why this should not be done here as well as elsewhere. Indeed, the court has gone further here in this general direction than in most other jurisdictions, as, for instance, in ordering judgment non obstante not only for the defendant as well as for the plaintiff but on the evidence as well as on the pleadings when the facts weré undisputed.
The exceptions are overruled.