21 Haw. 408 | Haw. | 1913
OPINION OF THE COURT BY
This is an action at law, ex. contractu, for the recovery from the sole defendant of the sum of $57,026.61. The trial court found that the promise declared on was made by James B. Castle and F. B. McStocker jointly with the defendant and rendered judgment for defendant on the sole ground of “nonjoinder of proper parties defendant” and plaintiffs excepted.
The fact, if fact it was, that there were three joint promisors did not appear on the face of the declaration and therefore the defect, if any, could not have been taken advantage of by demurrer; but the objection could have been raised by plea in abatement. No such plea was presented. The defendant filed an answer of general denial and proceeded to trial on the merits, the actual trial occupying a period of ninety-six days, commencing on September 20, 1910, and continuing, with intermissions, until August 16, 1911. Not until the last day of the trial was the contention advanced that there was a non-joinder of parties defendant. The" injustice of permitting the defendant to keep the point in reserve and to raise it for the first time at
The provision of section 1736 R. L., that under the general issue “the defendant may give in evidence, as a defense to any civil action, any matter of law or fact whatever,” does not render the rule above stated inapplicable or ineffective in this jurisdiction. The matter receivable in evidence under this provision must be a defense to the action. That others-not named as defendants promised jointly with the defendant. does not
Heeia Plantation Co. v. McKeague, 5 Haw. 101, is not an authority to the contrary. In that case the plaintiff, a foreign corporation, sued without alleging its compliance with the law which denied to a foreign corporation the benefit of the laws of the Kingdom unless it should file in the office of the minister of the interior a designation of a person upon whom service of process could be made. The question of the defectiveness of the declaration in this respect was raised by demurrer, the demurrer was sustained and the plaintiff was given leave to amend. The court said, inter alia: “In those countries where the common law exists, the rules of special pleading would require that the question, as to the corporate character of the plaintiff, be made by a plea in abatement, since by pleading to the merits, the defendant admits the capacity of the plaintiff to sue. But the plea of the general issue by our statute allows the defendant To give in evidence, as a defense to any civil action, any matter of law or fact whatever.’ Civil Code, Secs. 1106 and 1101. And under this plea, the plaintiff, on its amended petition, should be required to show its corporate existence and its compliance with the law.” To say nothing of other possible methods of distinguishing the case, it may be noted that the question there was whether the plaintiff was one of the class of corporations to which our statute expressly denied the benefit of our laws and more particularly of the right to sue. It. may well have been held that the statutory prohibition of the maintenance of an action continued throughout the trial and could be availed of under the general issue, but that ruling is not an authority in support of the contention that in an action such as that at bar, in which the plaintiffs are law
Upon another ground, however, the plaintiffs cannot prevail in this proceeding. The action is assumpsit. In the declaration as last amended, after reciting that on July 5, 1905, the plaintiffs jointly owned in North Kona, County of Hawaii, a large area of growing sugar cane, had- certain leasehold interests in the lands whereon the cane was growing and were jointly interested in the cane-planting enterprise, that on the day named they entered into an agreement with one F. B. McStocker relating to the making of' advances, the transportation of cane and the manufacture of sugar by McStocker and the planting, cultivation and harvesting of cane by the plaintiffs, that by assignment the interest of McStocker in and duties under the agreement passed to and devolved upon the Kona Development Company, the present defendant, and that certain modifications stated were subsequently made by the parties in the agreement of July 5, 1905, and after a recital, further, of advances made by McStocker or his successor to plaintiffs, of the furnishing by the plaintiffs to the defendant of certain cane seed, wood, use of buildings and land, growing cane on land not included in the agreements and other benefits, and of other acts of the parties under their agreements, it is alleged that as a result of negotiations commencing a short time prior to April 30, 1908, and ending on June 8, 1908, the parties entered into an agreement, hereinafter referred to as the contract of April 30, 1908, whereby “plaintiffs bargained to sell and defendant bargained to purchase all of the interest of plaintiffs in said standing and growing cane and leases and leaseholds and other property” and in three certain promissory notes of $5000 each owned by plaintiffs “for the sum of $79,565.28”; that in pursuance of the latest agreement plaintiffs transferred to the defendant all of their interest in the cane, leases, promis
The fundamental allegations upon which the action is thus made to rest are' the promise by the defendant to pay to plaintiffs $57,026.61 and the breach of that promise. Upon these points the facts as shown by the undisputed evidence, introduced
No citation of authority is required in support of the statement! that a breach of the promise declared on is of the essence of the action of assumpsit. Plaintiffs, recognizing this, have alleged a promise to pay money and a breach of that promise. But there has been an utter failure of proof of the breach, if not of the promise also. The only proof is of a promise to execute certain notes and to deposit them with a trustee as security for the payment of Scott’s indebtedness and of an agreement by all the parties that the notes shall not be delivered by the trustee to the payees until after the determination, in one of the methods named, of the amount of Scott’s indebtedness and that then such only of the notes shall be delivered as are not
The plaintiffs contend that the law announced in the opinion upon the appeal in the equity suit (19 Haw. 585) should be followed and that if followed it will require a decision in favor of the plaintiffs upon the point just discussed. The contention cannot be sustained. The extracts relied upon by the plaintiffs read: “We see no inadequacy of the legal remedy ip consequence of its requiring a money judgment while notes are deposited with a trustee to satisfy such judgment if any is made, for it is to be presumed that they would be applied in payment' of the judgment precluding an issue of execution”; and, “neither the declaration in the action nor the bill in equity presents any question which requires to be passed upon by a court of equity or which is not cognizable in a court of law.” Ordinarily questions concerning the relative jurisdictions of law and equity to determine a controversy arise when a complainant seeks relief in equity and the respondent objects on the ground that the complainant has an adequate remedy at law and therefore none in equity. In the case reported in 19 Haw. 585, the position was the reverse. The present plaintiffs had first sought a remedy at law and the present defendant urged various reasons why it believed that its rights would not be
Another contention is that the account involved in the case is of such a nature that it cannot be conveniently and properly' adjusted and settled in an action at law and that for this reason, if for no other, the plaintiffs’ remedy is in equity. Upon the motion to dissolve the injunction in the equity suit already referred to (19 Haw. 585) this court considered to some extent the question of the intricacy of the accounts, but upon the mere allegations of the bill found difficulty in “saying whether the action involves the taking of accounts too intricate for a jury to pass upon” and therefore preferred “to regard the injunction as properly dissolved on the ground that the bill does not contain averments requisite to sustain a bill for an accounting”, remarking that the bill did “not even pray for an accounting” and did not “allege that a balance would be found owing by the defendants to the plaintiffs and that the plaintiffs are ready and willing to pay whatever balance, if any, should be found upon the accounting to be owing by them to defendants.” Upon this subject the circuit court in its decision, “in passing, * * * observed, with reference to the supreme court’s remark, 19 Haw. 594, * * * that, with all the evidence presented after a trial of ninety-six days, it would certainly be difficult now to say otherwise than that The most that a jury could award would be a lump sum, derived from general impressions remaining as the consequence of a trial covering a long period of time and involving a great multitude of items of all kinds,’ ” quoting Fenno v. Primrose, 116 Fed. 49. The developments at the trial, with its testimony covering 5,639 pages of transcript, its mass of exhibits and the numerous items in dispute between the parties, would seem to at least lend considerable color to the remark of the circuit court.
In tbe formal judgment entered in tbe court below it is recited tbat tbe court rendered a decision “finding tbat there bas been failure to join James B. Castle and E. B. McStocker as defendants with tbe Kona Development Company, Limited, and ordering tbat judgment should be entered in favor of tbe defendant on tbe ground of non-joinder of proper parties defendant” and it is then “ordered, adjudged and decreed tbat tbe defendant, tbe Kona Development Co., Ltd.,- have judgment against tbe plaintiffs, M. E. Scott and Nettie L. Scott, on said ground, and for its costs.” Whether tbe judgment, if it bad failed to show on its face tbat it was based on tbe sole ground of non-joinder, should be affirmed because of tbe failure of proof of tbe breach alleged, need not be considered. In view of our conclusion tbat tbe ground of non-joinder must be deemed to have been waived and is not now available to tbe defendant, we think tbat tbe judgment in its present form should be set aside and tbat defendant’s motion for a nonsuit should be granted and a judgment of nonsuit entered. A motion for a nonsuit may be granted even though made, as this was, at tbe close of tbe case, provided only tbat tbe defendant’s evidence does not cure tbe defect complained of in the plaintiffs’ proof. Brown v. Ins. Co., 59 N. H. 298; Cooper v. Waldron, 50 Me. 80; White v. Bradley, 66 Me. 254; Fort v. Collins, 21 Wend. 109; Jansen v. Acker, 23 Wend. 480.
Plaintiffs excepted to tbe taxation against them as costs of attorneys’ commissions in tbe sum of $1,199.56 and of certain items of. disbursements for fees of experts and traveling expenses of witnesses. In strictness, perhaps, these questions are not properly before us for determination since tbe judgment of nonsuit bas not yet been entered. We shall, however, briefly state our views upon them in order to render unnecessary further litigation upon these points.
The two items of $60 each for traveling expenses of the defendant’s witnesses McQuaid and McStocker are not taxable against the plaintiffs. These witnesses were not subpoenaed. R. L., §1891, reads: “The pay of witnesses shall be as follows : Every witness subpoenaed and attending upon the trial of any civil cause, in any court of this Territory, shall be paid the sum of one dollar for each day’s attendance, and traveling expenses at the rate of ten cents a mile each way. The fees
The item of $190 for money paid to M. M. Graham, expert witness, including attendance at trial and travel,” and that of $103.50 to “¥. J. Dyer, expert witness”, were sworn to by one of defendant’s attorneys as “actual disbursments, necessarily and reasonably incurred in defense of said cause.” Whether the amount paid to the witness Graham for attendance and traveling expenses is recoverable depends upon whether the witness was subpoenaed, a fact not disclosed by the record. The fees paid to the witnesses as experts were for their services in examining books of account and otherwise preparing themselves to give testimony at the trial. The claim is made under the provision of R. L., §1889, under the title of “attorneys’ fees”, that “all actual disbursements sworn to by an attorney and deemed reasonable by the taxing officer, may be allowed in taxation of costs.” This provision is meager and leaves much to the discretion of the court. It is difficult to define, by con
The other questions argued need, not be considered. The exceptions are sustained, the judgment set aside and the cause remanded with directions to grant defendant’s motion for a nonsuit and to enter judgment accordingly.