22 Haw. 196 | Haw. | 1914
OPINION OF THE COURT BY
The plaintiffs, a copartnership consisting of three persons, commenced their action in assumpsit in the circuit court of the second circuit to recover a balance of $334.95 alleged to be due upon account for gasoline, etc., sold to the defendant, and repairs made for him upon an automobile. The complaint contains two counts, the first upon a book account and the second declaring upon an account stated. To the complaint plaintiffs attached a bill of particulars showing the items, of debit and credit. The defendant’s answer is a general denial. The case was tried by the court, jury waived, and judgment was rendered in favor of the plaintiffs for the full amount demanded with costs. The case comes to this court on exceptions.
The first exception is to the action of the court in sustaining the objection of the plaintiffs to the following question asked the plaintiff Schoening while testifying as' a witness: “Did you publish a notice in the newspapers of this county to the effect that Charles J. Schoening, Fred P. Rosecrans and Dan T. Carey were co-partners and doing business under the firm name of C. J. Schoening & Company?” upon the ground that the question is immaterial. The evidence theretofore introduced showed that plaintiffs had registered their partnership as required by section 2653, R. L. The object of the question' evidently was to show that the plaintiffs had not given the notice required by section 2655, R. L., as amended by Act 29; S. L. 1907. It is argued upon the part*of the defendant that the publication of such notice is a prerequisite to the plaintiffs’ capacity to sue and unless the notice required by the last named statute has been published in English and Hawaiian the re
It developed in the evidence that the plaintiffs had commenced in the district court of Wailuku, prior to the commence-’ ment of the present action, two different actions upon the account sued upon in which the account was intentionally split by leaving out items to the extent of $39.35, the same being the items in the account subsequent to the date, July 31, 1912. The first one of these actions was dismissed for the reason that the complaint and summons were not fastened together. The second was dismissed by the district court on the idea that the attorneys’ commissions and costs increased the amount sued for to more than $300, and, therefore, that the district court did not have jurisdiction. At the trial of this cause in the circuit court
It developed in the evidence that plaintiffs did business under a license to conduct a garage; that they did repair work upon motor cars; and sold, for the use of motor cars, grease, oil, gasoline, fixtures or new parts; and sold such articles to any one wanting them, whether the'purchaser had repair work done in plaintiffs’ garage or not. At the close of plaintiffs’ evidence defendant moved for a nonsuit upon the grounds, (1) that plaintiffs were doing business as a merchant without a merchandise license; (2) that the evidence did not tend to prove an account stated; (3) that the evidence did not prove delivery of all the goods, wares and merchandise claimed to have been sold to defendant by plaintiffs. This motion was denied and the action of the court in this regard is the basis of exception number three. The defendant introduced no evidence. A careful study of the record convinces us that the evidence was sufficient to show, prima facie, a sale and delivery of the goods named in the'bill of particulars attached to the plaintiffs’ complaint. The evidence tends to show that Mr. Schoening sold and delivered a large part of the goods; that Mr. Carey, another of the plaintiffs, sold and delivered other articles; and that the other articles were sold and delivered by employees of the plaintiffs; that in each instance a slip showing the transaction was made, and, in the evening of the same day, generally, entries in the books of account were made from such slips, occasionally, the entry being made a day or two later. The court, at the request of the parties, appointed a commissioner to examine the slips and books, who reported that the slips corresponded with the entries in the books, and bill of particulars, and which fact was practically admitted by counsel for defendant at the trial.
The objection urged, by the plaintiffs in their supplementary brief as to the validity of Act 96 S. L. 1907, is evidently an afterthought, as the record does not show that it was raised in the circuit court, and the question was not mentioned in plaintiffs’ original brief in this court. We have concluded that, following the rule so well established, that courts will not pass
The fourth exception challenges the correctness of the judgment. There is no exception in the record to the decision of the court upon which the judgment is based. It has been held by this court that in a jury waived case the decision of the court takes the place of a verdict, hence this exception, which goes to the judgment only, does not question the decision, and only raises the question as to the form of the judgment, which plaintiffs have not questioned nor discussed either in briefs or oral argument. “The decision in a case tried without a jury is analogous to the verdict in a case tried with a jury, and an objection that a decision was contrary to the law or the evidence can be made in this court only when an exception to the decision has been noted in the trial court.” Nahaolelua v. Heen, 20 Haw. 613. We therefore hold that this exception cannot be sustained.
Exceptions overruled.