16 Haw. 17 | Haw. | 1904
OPINION OF THE COURT BY
This is an action for $3143.83, the balance alleged to be due for goods sold and delivered by the plaintiffs to the defendants, and also for $1000, the amount of a note given in part payment for such goods, and for interest. A verdict was directed for the
1. The defendants objected at the outset to the introduction of any evidence by the plaintiffs on the ground that the complaint did not state a cause of action. It was to the overruling of this objection that the exception chiefly relied on was taken. No specific defect in the complaint was pointed out at the time, but it is contended that that was unnecessary because the court overruled the objection summarily and declined to hear argument upon it and because a defect of this nature may be taken advantage of at any time — even after verdict. We need not consider these preliminary questions because in our opinion the complaint does state a cause of action.
The alleged defect now pointed out is that no promise is alleged. It will be sufficient to refer only to the count for the balance due on goods sold 'and delivered. It is alleged, among other things, that the goods were “sold and delivered unto the defendants by the plaintiffs at the special instance and request of the defendants * * * and that the said sum is now due and owing unto the said plaintiffs from the said defendants,” but it is. not alleged, as was the practice at common law, that the defendants undertook and promised to pay on request.
The common law requirement of an allegation of a promise in a common count in indebitatus assumpsit is the result of the historical evolution of that form of action and the resort to fictions — so usual in the early history of the common law,- — in order to work substantial justice and meet growing needs without departing from established forms. 1 Ch. Pl. 308; Pom. Rem. & Rem. Rights, Sec. 512; Bliss, Code Pl., Secs. 12, 152, 154; Holmes, Com. Law, 274 et seq. Even at common law it was not necessary to use the word “promise”. The equivalent of that was sufficient. Whether the allegations in this complaint would be considered as satisfying that requirement we need not say, for the complaint is sufficient under our statutes and practice.
2. The exception chiefly relied on in connection with the count on the note was taken to the overruling of the objection made to the admission of the note in evidence on the ground that it was “incompetent, irrelevant and immaterial” and that no
It is well settled tbat an unstamped instrument may be admitted for collateral purposes though not to sustain an action upon it as such. It is unnecessary to say whether tbe note in question was admissible for any purpose under tbe count for goods sold and delivered. For it is clear tbat even if it were not, tbe objection to it might have been obviated by procuring it to be stamped in tbe manner provided in Section 13 of the stamp act, as amended (See Makainai v. Goo Wan Hoy, 14 Haw. 683, 684), or tbe first count of tbe complaint might have been amended so as to permit of a recovery for tbe consideration of tbe note, tbat is, tbe goods sold and delivered, in payment for wbicb tbe note was given, — for tbe note, not having been paid at maturity did not operate as payment for tbe goods, and a recovery could be bad on tbe original contract. Wilson v. Carey, 40 Vt. 179; Wayman v. Torreyson, 4 Nev. 124; Isreal v. Redding, 40 Ill. 362; Joaquin v. Warren, 40 Ill. 459. See also Hardy v. Collector, 1 Haw. 488; Jan Ban v. Tsen Yim, 15 Haw. 433.
3. In support of an exception to tbe direction of tbe verdict, it is contended tbat there was at least a scintilla of evi
The remaining exceptions need not be considered as they either are abandoned or raise questions that have been considered alre'ady.
The exceptions are overruled.