Henry Waterhouse Trust Co. v. Rawlins
| Decision Date | 20 July 1936 |
| Docket Number | No. 2179.,2179. |
| Citation | 33 Haw. 876 |
| Parties | HENRY WATERHOUSE TRUST COMPANY, LIMITED, v. MILLIE F. RAWLINS ALSO KNOWN AS MELVINA F. RAWLINS AND ALSO KNOWN AS MALVINA F. RAWLINS. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HEREERROR TO CIRCUIT COURT FIRST CIRCUIT. HON. C. S. DAVIS, JUDGE.
Syllabus by the Court
The rule that a condition once shown to exist is presumed to continue until its existence is negatived, applies only to permanent and continuing conditions.
This presumption depends on the nature of things and should never be allowed such application as will oppose the nature of such things.
It will be inferred that a particular fact continues to exist as long as such fact usually, as a matter of experience, continues to exist.
Where a motion for a directed verdict is presented the trial judge must look upon the evidence adduced in the light most favorable to the movee with every reasonable inference which may be drawn from the evidence resolved in his favor and if, having done so, there is as a matter of law evidence of that substantial character amounting to more than a scintilla, the case is for the jury and the motion must be denied.
But if the record is devoid of evidence amounting to more than a scintilla a verdict will be directed.
A defendant may not in an action at law show a collateral parol agreement to vary the written terms of the promissory note.
A contemporaneous oral agreement will not be received in evidence to contradict that which is written.
J. V. Hodgson ( E. C. Peters on the briefs) for plaintiff in error.
M. E. Winn ( G. M. Nowell with him on the briefs) for defendant in error.
COKE, C. J., BANKS, J., AND CIRCUIT JUDGE METZGER IN PLACE OF PETERS, J., DISQUALIFIED.
Henry Waterhouse Trust Company, Limited, plaintiff, instituted its action in the court below against Millie F. Rawlins, defendant, to recover on a promissory note al-alleged to have been executed by defendant to plaintiff as payee and upon which at the date the suit was instituted, to wit, September 19, 1933, there was a balance of $6625.25 due, with interest at seven per cent from November 21, 1930. The note bears the date of November 21, 1925, and was originally for $7085.25.
To the complaint defendant interposed an answer pleading the general issue and giving notice of reliance also upon the special defenses of fraud and payment. The defendant included within its answer a setoff in the sum of $4800, together with interest at seven per cent from November 21, 1925, which she alleged was then on deposit or should have been on deposit with plaintiff as trustee of the defendant, and for which amount she demanded judgment against plaintiff.
The cause was tried in the court below with a jury and at the conclusion of the introduction of the evidence by both parties plaintiff moved the court for a directed verdict in favor of plaintiff for the full amount of its claim and a verdict against the defendant upon the demand contained in her setoff. The motion was granted and under the instructions of the court the jury returned its verdict in favor of plaintiff and against the defendant on all issues. Judgment upon the verdict was rendered and the defendant brings the cause to this court for review on a writ of error.
The trust company proved the execution and delivery of the note by defendant to plaintiff, the consideration therefor, demand and nonpayment of the balance owing thereon, with interest, all as alleged in plaintiff's complaint. As against this showing the defendant offered no evidence. Indeed it is admitted by defendant that plaintiff made out a prima facie case on the cause of action set forth in its complaint. Therefore at the close of the case it became the legal duty of the trial judge to grant plaintiff's motion for an order directing a verdict for plaintiff in the full amount of its claim against defendant provided defendant had failed to prove her cause of action alleged in her offset by evidence amounting to more than a scintilla. The evidence of the defendant in support of her setoff is confined almost wholly to her own testimony. This evidence is to the effect that the plaintiff for many years prior to February 16, 1931, was engaged in the usual trust company activities, having a stock and bond department, also a real estate department; the capital stock was owned by R. W. Shingle, A. N. Campbell, and others, but in what proportion the record fails to disclose.
The only evidence introduced at the trial identifying any of the officers of the trust company was that in the year 1909 R. W. Shingle was president and A. N. Campbell was treasurer; that some twenty-one years later, to wit, in 1930, John K. Clarke was treasurer. There is no showing of any kind who the officers or directors of the trust company were during the years 1923, 1924 and 1925, the period within which the transactions made the bases of defendant's setoff are alleged to have occurred. During the year 1923, and for a long period prior thereto, the defendant was an employee in the real estate department of the trust company and continued in that capacity until 1931. During the same period F. E. Steere was manager of the real estate department. Mr. James Laird, in 1923--1925, was an employee in the stock and bond department of the trust company. In 1923 the officers of the Kaimuki Land Company were A. N. Campbell, president and director; F. E. Steere, vice-president and treasurer; W. A. White, treasurer; James Laird, secretary and director; and R. W. Shingle, auditor and director. In the latter part of 1923 the land company, through its sales representative the trust company, placed on the market a certain tract of land owned by it, situated at Palolo, City and County of Honolulu. In November of that year the defendant purchased the property from the land company through the trust company for the consideration of $3200. According to the testimony of the defendant, shortly following this transaction Mr. Steere informed her that he had been told by Mr. A. N. Campbell that a Mr. Newton complained to him that the property had been sold to the defendant below the market value and that Newton had made an offer of $8000; that Campbell desired to know if the defendant was willing to deed the property back to the land company so that it, in turn, would be in a position to convey to Newton for the increased consideration. The defendant further testified that she thereupon had a conversation with Campbell in which he related certain recent criticism of the Waterhouse Trust Company in connection with other transactions and suggested to the defendant that, to avoid further talk, the defendant reconvey the property to the land company and it would then accept the Newton offer. Miss Rawlins testified that she advised Campbell of her willingness to sell the property for a consideration of $8000 and with that understanding in view she prepared and executed a deed conveying the property to the land company, the consideration therein named being $3200; that shortly thereafter the land company conveyed the property to Newton for the consideration of $8000. The evidence further shows that after the transaction with Newton was concluded, the original consideration paid by the defendant for the property, namely, $3200, was returned to her and the balance of the Newton consideration, that is, $4800, less realtor's commission of ten per cent retained by the trust company as selling agent, was distributed to Shingle and Campbell, the owners of the capital stock of the land company. These payments were made through the trust company, it having received the money paid by Newton as agent for the land company. The defendant testified that shortly following the conclusion of these transactions and in the latter part of January, 1924, and because she contemplated making an investment, she notified Steere that she wished to withdraw the sum of $4800 which she claimed was on deposit to her credit with the trust company. Steere thereupon conferred with Campbell and advised defendant that Campbell had informed him that she had no money on deposit. The defendant then personally interviewed Campbell whose conversation was confined to the mere statement: “I sold you that land too cheap.” Campbell then took refuge in the company's directors' room and closed the door. A few days subsequent the defendant again spoke to Campbell who said that he would talk the subject over with Shingle. Shortly after that Campbell advised defendant that Shingle said they would pay her nothing in excess of $500. The subject was never discussed again between defendant and Campbell but according to defendant's testimony, when some two years later she was negotiating with the trust company, through Laird, to purchase certain corporate stock and executed to the company the promissory note involved in this suit, her alleged account with the trust company was discussed with Laird. She testified at the trial: “Q Now do you remember the occasion, Miss Rawlins, of the execution of this particular note in question? A I do. Q I want you to to tell me with whom, if anyone, you talked relative to the purpose of this indebtedness and the borrowing of this money; who was the first one you talked to? A Mr. Laird. Q And Mr. Laird at that time was an employee of the Henry Waterhouse Trust Company, was he? A Yes, sir. Q And he was also a secretary of the Kaimuki Land Company? A Yes, sir. Q And what did Mr. Laird say to you? A He approached me and asked me if I wanted to buy some Hawaiian Sumatra. Q What did you say? A I said ‘Well, you know the circumstances.
I haven't any money just now.’ Q What did he say? A He said ‘You can buy the stock if you want it.’ He said ‘I will write out a note and you can have the stock.’ Q What else was said? A I said I had no money to pay for it. Q What else was said by he or you? A I said...
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