Bank of Bishop & Co. v. Haw. Soap Co.

• Decision Date: 28 January 1925
• Docket Number: No. 1547.,1547.
• Citation: 28 Haw. 180
• Court: Hawaii Supreme Court
• Parties: THE BANK OF BISHOP & COMPANY, LIMITED, A CORPORATION, v. THE HAWAII SOAP COMPANY, LIMITED, AND K. AKIRA.

28 Haw. 180

THE BANK OF BISHOP & COMPANY, LIMITED, A CORPORATION,

v.THE HAWAII SOAP COMPANY, LIMITED, AND K. AKIRA.

No. 1547.

Supreme Court of the Territory of Hawai‘i.

Argued January 19, 1925.

Decided January 28, 1925.

OPINION TEXT STARTS HERERESERVED QUESTION FROM CIRCUIT COURT FOURTH CIRCUIT. HON. H. L. ROSS, JUDGE.

(Peters, C. J., concurring.)

Syllabus by the Court

When evidence is adduced tending to support the necessary findings in favor of the defendant it is error to direct the jury to render a verdict for the plaintiff.

W. H. Smith (also on the briefs) for plaintiff.

F. Patterson (also on the brief) for defendants.

PETERS, C. J., PERRY AND LINDSAY, JJ.

OPINION OF THE COURT BY PERRY, J.

This is an action of assumpsit upon a note for $9000. The defendants are The Hawaii Soap Company, Limited, the maker, and K. Akira, an indorser. At the first trial, in obedience to the direction of the presiding judge, the jury rendered a verdict in favor of the plaintiff and against both defendants for the full amount of the principal of the note and for interest. Upon exceptions this court sustained the verdict as against the maker, set aside the verdict as against the indorser and granted him a new trial. (27 Haw. 537) At the new trial of the case as between the plaintiff and the indorser alone, evidence was introduced by both sides. When both parties had rested, the plaintiff asked the court to direct the jury to render a verdict for the plaintiff. Thereafter the parties entered into a stipulation to the effect that the cause might be submitted to the supreme court on the following reserved question: “Should the request of the plaintiff in this cause for a directed verdict against the defendant K. Akira be granted?” and further to the effect that “in the event that the supreme court should answer the reserved question in the affirmative, then the plaintiff shall be entitled to recover judgment as prayed for” and “should the answer of the supreme court to said reserved question be in the negative, * * * the defendant K. Akira shall be entitled to have judgment entered in his favor in said cause;” also that the jury might be dismissed. The jury was thereupon dismissed and the trial judge reserved for the consideration of this court the question in the terms above quoted.

It is evident that the plaintiff was entitled to a directed verdict only if there was not evidence sufficient to support a verdict in favor of the defendant. If there was evidence, more than a mere scintilla, from which the jury could as reasonable men find a verdict in conformity with law favorable to the defendant, then a direction such as that requested would be out of place.

On or about June 10, 1921, the defendant, The Hawaii Soap Company, Limited, obtained from the plaintiff a loan of $9000 and gave to the plaintiff its promissory note in that sum indorsed by the defendant Akira and a mortgage upon a leasehold interest in certain land. About a week later the soap company gave to the plaintiff an additional mortgage upon certain machinery and other personalty, to secure the repayment of the same loan. These facts were undisputed. Examining the transcript of the evidence we find that there was evidence tending to show that in applying to the plaintiff for the loan it was represented to it by the applicant that the latter had certain machinery at the dock which had not yet been delivered to it because it had not been paid for by the purchaser, The Hawaii Soap Company, Limited; that upon payment for the machinery and receipt and delivery thereof the soap company would be able and willing to give to the plaintiff a mortgage upon the machinery by way of further security for the loan; that both on the occasion of the making of the arrangements for the loan and the giving of the note and the first mortgage and on the occasion about a week later of the giving of the second mortgage Muraki, acting on behalf of the plaintiff in these negotiations, told Akira that the note, with its indorsements would be “temporary only” and that upon the soap company delivering to the bank a mortgage upon the machinery and other personalty the indorsers would be released from all further obligation in the matter. For example, Akira testified, “so temporarily Mr. Muraki said that he would accept note for this loan” (Tr. p. 14); “Muraki said that the personal note of $9000 was to be considered canceled” ( Ib.); “we wanted money but the mortgage could not be executed because the machinery had not yet been delivered and that's the reason this note was made temporarily and to be afterwards taken place by this mortgage” (Tr. p. 15); “I asked Muraki at the time that if this mortgage and the personal note that was executed before that was to be canceled and he said ‘Yes”’ (Tr. p. 18); referring to the note, “he said that is all pau, no more of that note” (Tr. p. 21); “Was it then that Muraki made any statements to you about the note that you had signed being done away with?” “That was said in the office” (Tr. p. 26); and “I asked Muraki that the-that since we are putting in this new mortgage that the old one was to be considered as canceled and he said ‘Yes, that is so”’ (Tr. p. 26). T. Ono, a witness, testified that Muraki said “that since the note that was given previously was for temporary note until the execution of this mortgage and that upon the execution of this mortgage the former note was to be canceled” (Tr. pp. 35, 36). Muraki testified: “In regard to the indorsers there was a new note to be taken in connection with the mortgage, only a temporary note.” “That was a temporary note?” “Yes” (Tr. p. 39); “I told him” (Akira) “it was the understanding that the note would be canceled.” “That was to be canceled upon the execution of the mortgage, is that correct?” “Yes sir” (Tr. p. 40); “when the mortgage was executed” (meaning the second mortgage) “Akira said to me ‘if all the indorsers were to be released’ and I told him ‘Yes”’ (Tr. p. 42); “Shaw” (acting manager) “told me to tell them that if the note was-if mortgage was executed the note...