22 Haw. 91 | Haw. | 1914
OPINION OP THE COURT BY
The plaintiffs instituted an action against the defendant in the district court of Waialua, city and county of Honolulu, alleging “That the plaintiffs, at the special instance and request of the defendant, made certain repairs and performed labor and furnished and used material in repairing a certain automobile belonging to the defendant between the 26th day of March, 1913, and the'lst day of May, 1913, to the extent and value of $294.78, all of which the said defendant promised and agreed to pay the plaintiffs. That by agreement between the plaintiffs and the defendant, the "said plaintiffs bought from defendant and credited upon account of said repairs, labor and material one ‘Hupmobile’ at the agreed price of $200, and which sum the plaintiffs credited upon said account for said repairs, labor and material, leaving a balance due thereon from the defendant to the plaintiffs in the sum of $94.78, which amount and balance is past due and wholly unpaid.”
A bill of particulars showing the hind and number of materials used, the prices thereof, and the amount of labor bestowed on the job, also a credit of $200 for the Hupmobile, and the balance due, was attached to the complaint.. Accompanying the complaint there was also the affidavit of one of the plaintiffs conforming to the requirements of Act 52, Session Laws of 1905, relating to suits on open accounts. It was therein stated that the “repairs, labor and material” as well as the “goods” had been “delivered to said defendant.” No counter-affidavit by
The statute provides that when an action in a district court is founded upon an open account supported by affidavit to the effect that such account is just, true and correct, that all the goods had been delivered, that it is due, and that all just and lawful offsets, payments and credits have been allowed, the same shall be taken as prima facie evidence thereof unless the party resisting the claim shall make and file with his answer a counter-affidavit stating the items- and particulars which are unjust, untrue or incorrect, or otherwise, and whenever any party fails to file such counter-affidavit he shall not be permitted to deny the account or any item therein which he shall not particularize in such counter-affidavit as the case may be.
Was the plaintiffs’ claim based upon an open account ? This is to be determined from an examination of the plaintiffs’ com
An “open account” is defined as “one which is continuous or •current, uninterrupted or unclosed by settlement or otherwise, consisting of a series of transactions; also one in which some item in the contract is left open and undetermined by the parties, in which sense it may exist whether there be but one item or many; but if a single claim or contract is certain and fixed in all its terms it cannot be said to be an open account.” 1 Cyc. 363. • “The word 'open’ indicates that there is something undetermined by contract of the parties or by the application of settled rules of law, and it would seem that an account cannot be said to be open when there remains no term of the contract to be settled by agreement of the parties.” McCamant v. Batsell, 59 Tex. 363, 369. See also Wroten G. & L. Co. v. Mineola Box Mfg. Co. (Tex.) 95 S. W. 744; Northern Alabama R. Co. v. Wilson Merc. Co. (Ala.) 63 So. 34. We think the complaint in the case at bar is open to the construction that the contract intended to be declared upon was fixed and certain in all its terms.
Strict rules of pleading are not applied in proceedings in the
Counsel for the defendant argue that this court should render judgment for the plaintiff in' error upon this writ under the evidence given in the district court which is in the record. We do not sustain this contention. The defendant took a general appeal to the circuit court waiving jury. That required (unless the appeal be withdrawn) a trial de novo in that court and the entry of a new judgment. Bell v. Palea, 13 Haw. 278, 281. The case was in position for trial upon the merits in that court. It will not be necessary now to pass upon the further contention advanced by counsel for the defendant that in any event the statute applies only to cases where the plaintiff’s claim is upon an account for goods sold and delivered.
The order granting the motion for judgment and the judgment entered in the circuit court are vacated and set aside, and