26 Haw. 54 | Haw. | 1921
OPINION OF THE COURT BY
This is an action in assumpsit for $4141.81. The complaint contains three counts. The first count declares upon a contract in writing, a copy of which is attached to the complaint as an exhibit; the second claims the same amount to be due the plaintiff from the. defendant upon a quantum meruit for work and labor performed by plaintiff for defendant at his special instance and request, while the third is for the same amount alleged to have been received, by the defendant from the Laupahoehoe Sugar Company for the use and benefit of plaintiff. The defendant answered admitting an indebtedness to the plaintiff in the sum of $2525.08; alleged that he had made a legal tender of said amount to the plaintiff prior to the institution of this suit, which was refused, and again makes the tender of the same amount in court by depositing with the clerk the sum of $2525.08. He prays that the plaintiff may be adjudged to have and recover from him the said sum of $2525.08 and no more. The case is here on plaintiff’s interlocutory bill of exceptions and presents for our consideration questions of the admissibility of evidence and the correctness of rulings on motions for leave to amend the complaint and to stay the proceedings until a bill in equity to reform the contract can be brought and tried.
The written contract involved purports to have been executed by the plaintiff and defendant September 11, 1918, and by its terms the plaintiff was to perform all
By evidence and stipulations the plaintiff established that he had fully performed his obligations under said contract. . He thereupon attempted to prove the circumstances under which the contract was signed and what oral agreement he and defendant had with reference to
Plaintiff also later in the proceeding requested leave to amend his pleading so as to allege facts substantially the same as those contained in his offer of proof. Defendant objected to the amendment on the grounds: “(1) That the offer to amend should have been made prior to the commencement of the trial; (2) that the amendment so alleged would be an attempt on the part of the plaintiff to vary the terms of the written contract by the use of parol contemporaneous evidence; (3) that the amendment so alleged would be a variance of the form of action and would vary the theory adopted by the case as originally produced.” Leave to amend was refused and the court stated that it wanted the record to show that it was refused on all grounds. Plaintiff excepted.
It appears from evidence adduced upon the trial that defendant sold the sugar cane produced by plaintiff upon the lot in question to the Laupahoehoe Sugar Company at a price based upon the average price of sugar during the month in which deliveries were made which produced a sum, 6/7 of which, after deducting all expenses properly chargeable to plaintiff, equals the amount for which plaintiff is suing. It further appears from evidence given by some of plaintiff’s witnesses upon cross-examination that if defendant had received payment for said sugar
It must be apparent that if the proof which plaintiff offered was properly rejected there was no error in refusing to permit him to amend his complaint for if he is not entitled to prove these matters he was not injured by being denied the right to allege them. “A court will not allow an amendment designed to permit the introduction of parol testimony varying the terms of a written contract.” 31 Cyc. 421.
A disposition of the exception to the refusal to receive the offer of proof will also dispose of the exception to the refusal to allow the amendment.
Was the evidence offered admissible in an action at law on the written contract? A parol agreement which is collateral to a written contract and not inconsistent with it may be proved (Durkin v. Cobleigh, 156 Mass. 108) but no rule is better settled than that which forbids parol evidence of terms which are inconsistent with the provisions of the written contract declared upon. Stewart v. Spalding, 23 Haw. 502, 513; Richards v. Ontai, 19 Haw. 451; Henry v. Shields, 19 Haw. 302; Ah Hoy v. Raymond, 19 Haw. 568. As the written contract stands the payment to plaintiff by defendant is limited by the provision that settlement shall be upon the basis of New York prices forty-five days after delivery of the cane. Evidence to the effect that settlement was not to be made upon that basis would clearly be inconsistent with the provisions of the writing and was therefore inadmissible.
We next consider the exceptions to the evidence which the defendant was permitted to elicit from plaintiff’s witnesses upon cross-examination. John Frazer, the bookkeeper of the Laupahoehoe Sugar Company, was called as a witness for plaintiff and upon direct examination testified to the weight of cane harvested upon lot 85, the price paid the defendant therefor by said company and the said company’s charges against same. Upon cross-examination by defendant’s counsel he was permitted to testify over -plaintiff’s objection as to the basis of the company’s settlement with the defendant for said cane and what he would have received had the settlement been upon the basis of New York prices forty-five days after delivery. The' only objection made to this line of cross-examination was that it was not proper cross-examination. The exceptions do not challenge the competency or relevancy of the questions asked. The only issue on these exceptions therefore is whether reversible error was committed in permitting these questions upon cross-examination. It is a general rule of law that the extent and
We have yet to consider the exception to the refusal of the court to grant plaintiff’s motion which he styled a motion for stay of proceedings. After plaintiff had introduced all of his evidence he filed a motion supported by affidavit in which he set up all of the facts which he claims entitle him to have the contract as written reformed and asked for a stay of this proceeding until he could present a bill and get a decree in equity on his claim that the written contract does not truthfully set forth the agreement between him and defendant. The defendant says that the question of whether or not a court of equity has jurisdiction to reform a contract inadvertently entered into by reason of a mutual mistake of fact is not involved, but if it is then he admits the court has such jurisdiction. He does not contend that such a bill, filed after the institution of the action on the contract, would be improper or abate the action. What he does is to liken the motion made to an ordinary motion
Finding no error in the rulings, complained of the exceptions are overruled.