19 Haw. 486 | Haw. | 1909
OPINION OP THE COURT BY
This was an action of assumpsit to recover $10,000 upon the defendant’s agreement to pay the plaintiff that sum for compromising a suit in equity brought by the plaintiff and others against the defendant for an accounting of the accumulations of a trust fund, her removal as trustee and the appointment of another in her place. A compromise was made pend
“Although nearly two weeks have been consumed in the taking of evidence in support of the plea in bar, it does not seem necessary to the Court to take the case under advisement. It seems to the Court that it is simply a question of fact. The fact presented is, -was there a compromise made and was it made without fraud or misrepresentation.
“The Court in passing ftpon the question acts in the nature of a jury instead of that of the Court. The question is, did Airs. Afong promise Airs. Burns a home or $10,000, or anything, in consideration of her signing the compromise? From all the evidence in the case the Court is satisfied that Airs. Burns entered into this compromise with her eyes open, and that she was aware of this compromise.
“The plea in bar is sustained.”
The question presented by all the three exceptions taken by the defendant is whether the plaintiff is estopped by the decree, the court having overruled the defendant’s plea that the decree finally adjudicated the issue of a promise. It is contended by the plaintiff that it is only by inference that it can be said that llie court decided that there was no promise at all, a promise with an intention not to keep it being the fact in issue and not whether any promise was made. The defendant contends that the decision necessarily disposes of the fact of a promise, with whatever intention, for if there was no promise there could be no intention.
Specifically the pleadings, besides the plea referred to, were as follows: The plaintiff demurred to the plea on the ground that the decree determined nothing in the equity suit except
When the case was called the plaintiff’s attorney objected to Justice Perry sitting on the ground that he had acted as attorney in the equity suit. After the justice had stated what his connection with the case was the objection was overruled and the attorney was given leave to file his statement later. We find the facts to be in accordance with Justice Perry’s statement which appears in the minutes. The fact is, clearly, that Justice Perry has not at any time acted, in this or in any other cause, as counsel for either of the parties to this suit and that his only connection with the equity suit was as attorney for certain other parties. No disqualification exists.
After a hearing for two weeks on the plaintiff’s claim that she was induced, to compromise by the defendant’s fraudulent promise to pay her $10,000 the court did not hesitate to find, as we understand its decision, that she executed the compromise without fraud or misrepresentation or promise of anything and with her eyes open.
In the equity suit the material fact in issue was whether the compromise was obtained by the promise made with intent not to keep it. Both the promise and the fraudulent intent were necessary to be shown, failure of proof of either of these requiring dismissal of the bill. Two courses were open to the trial court, first, to find that there was no promise, when there could have been no intent not to keep it, and. second to find or assume a promise and then find that the promise was made in good faith without intent not to keep it. The judge said: “It seems to the Court that it is simply a question of fact. The fact presented is, was there a compromise made and was it made without fraud or misrepresentation. * * * The question is, did Mrs. Afong promise Mrs. Burns a home or $10,000 or anything in consideration of her signing the compromise? From all the evidence in the case the Court is satisfied that Mrs. Burns entered into this compromise w-ith her eyes open and. that she was aware of this compromise. The plea in bar is sustained.” Had the court merely stated the broad question which it first stated, “was it made without fraud or misrepre
The plaintiff’s demurrer to the plea was properly overruled and as no new showing was made by the replication the defendant’s demurrer to it and also the plea in bar itself should have been sustained and judgment for defendant entered.
Exceptions sustained.