A. M. Stewart & James C. Stewart, Copartners Doing Bus. Under the Firm Name & Style of James Stewart & Co. v. Spalding

• Decision Date: 09 September 1921
• Docket Number: No. 1297.,1297.
• Citation: 26 Haw. 162
• Court: Hawaii Supreme Court
• Parties: A. M. STEWART AND JAMES C. STEWART, COPARTNERS DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF JAMES STEWART & COMPANY, v. Z. S. SPALDING.

26 Haw. 162

A. M. STEWART AND JAMES C. STEWART, COPARTNERS DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF JAMES STEWART & COMPANY,

v.Z. S. SPALDING.

No. 1297.

Supreme Court of the Territory of Hawai‘i.

Submitted September 1, 1921.

Decided September 9, 1921.

OPINION TEXT STARTS HEREERROR TO CIRCUIT COURT FIRST CIRCUIT.HON. C. S. FRANKLIN, JUDGE.

Syllabus by the Court

In a case submitted on briefs assignments not argued in the briefs will be regarded as abandoned and will not be noticed.

Where the jury by finding for the plaintiff on a quantum meruit count necessarily found that the contract declared upon in another count had been broken the refusal to admit evidence offered solely for the purpose of showing that the contract sued upon had been modified by certain letters if erroneous was harmless.

Evidence though material and proper at the time offered if rendered immaterial by the verdict its rejection will not constitute reversible error.

Frear, Prosser, Anderson & Marx for plaintiffs in error.

W. B. Lymer and Robertson, Castle & Olson for defendant in error.

KEMP AND EDINGS, JJ., AND CIRCUIT JUDGE BANKS IN PLACE OF COKE, C. J., ABSENT.

OPINION OF THE COURT BY KEMP, J.

This case comes before this court upon writ of error to the circuit court of the first judicial circuit to review certain errors alleged to have been made during the trial of said cause.The plaintiffs in error were the plaintiffs in an action of assumpsit tried in the circuit court with a jury.The complaint contains four counts.The first count is upon a contract in writing bearing date the 29th day of July, 1909, and alleged to have been modified by certain letters dated August 3 and 10, 1909, for the construction of a building at Portland, Oregon, a balance of more than $50,000 being claimed to be due and unpaid under said contract.The second count is in quantum meruit for the reasonable value of the materials furnished and the work and labor performed in the erection and completion of said building.The other two counts of the complaint are immaterial to the present discussion.The defendant in his answer denied that there remained an unpaid balance due the plaintiffs under the contract or otherwise and claimed that certain items had been improperly charged against him and that he had been damaged by reason of delay in the completion of the building and by defective construction, the amount claimed by him in these matters also being immaterial to the present discussion.The jury returned a verdict for plaintiffs under the second count in the sum of $30,824.27 without interest whereupon judgment was entered in favor of the plaintiffs for said sum of $30,824.27 together with their costs taxed at the sum of $5081.95, making a total judgment in the sum of $35,906.22.This case has been twice tried by the circuit court of the first judicial circuit.Upon the first trial the jury returned a verdict in favor of the plaintiffs for the sum of $38,847.63 with interest from February 3, 1911, upon which the court entered a judgment for the sum of $57,038.76, which judgment was by this court reversed and a new trial ordered pursuant to the opinion of this court dated November 17, 1916, and reported in 23 Haw. at page 502.

In the record now before us there are contained ninety-seven assignments of error, but only fourteen of said assignments have been referred to in the brief of the plaintiffs in error.Under the practice in this court(the case having been submitted on briefs) those assignments of error not referred to in the brief will be regarded as abandoned and will not be noticed.Republic v. Ah Yee,12 Haw. 169;Akana v. Territory,22 Haw. 479;Estate of Afong,26 Haw. 147.

Assignments of error Nos. 1 to 5 inclusive and 13 all involve the correctness of the ruling of the circuit court in the exclusion of portions of the testimony of Cass Gilbert, the architect who designed the building in question, relative to the issue made by plaintiffs' contention that the written contract was modified by the letters of August 3 and 10, 1909, which are discussed and partly set out in the opinion of this court in the former appeal.In order to make clear our disposition of these assignments of error it becomes necessary to set forth something of the manner in which the case was submitted to the jury and the effect of the jury's finding.The circuit judge in instructing the jury as to the conditions under which it might find for the plaintiffs on the second count said: “Should you find that the building was not completed within a reasonable time after July 22, 1910, or that there was a substantial breach of the contract by the plaintiffs then I instruct you that the contract would be considered broken and if thereafter the defendant accepted and used the building the plaintiffs may recover if at all only on a quantum meruit count, that is, they may recover the reasonable value of the labor performed and the materials used in the erection of the building together with the reasonable value of their own services but could not recover for agreed commissions or interest.The right to recover on quantum meruit depends upon the implied promise of the defendant to pay the plaintiffs the reasonable value of the labor performed and materials furnished including the reasonable value of plaintiffs' services.This promise may be shown by either direct or circumstantial evidence, by the words or by the conduct of the parties.”Under this instruction before the jury would be authorized to find against the plaintiffs on the first count and for them on the second count it would have to find either that the building was not completed within a reasonable time after July 22, 1910, or that there was a substantial breach of the contract by the plaintiffs in other respects and that the defendant accepted and used the building.There is no assignment of error which we may consider complaining of this instruction or that there was not sufficient evidence to warrant the jury in so finding.We therefore assume that the jury properly so found.

All of the evidence rejected by the court and made the subject of the assignments of error now under discussion, namely, assignments 1 to 5 inclusive and 13, was offered solely for the purpose of establishing that the defendant ratified the letters of August 3 and 10, 1909, and that the contract actually was modified as claimed and would have no bearing whatever upon the question of the value of the labor and materials furnished in the erection and completion of said building.The jury having found against the plaintiffs on the first count and for them on the second count it must have found that the contract was broken, and, as we have seen, the correctness of this finding is not questioned by any of the assignments of error which we may consider.It has therefore become immaterial whether the contract was or was not modified and since the rejected evidence only tended to establish that the contract was modified its rejection even if erroneous was not prejudicial to plaintiffs.Evidence though material and proper when offered if rendered immaterial by the verdict its rejection will not constitute reversible error.

Assignment of error No. 6.The question of law involved in this assignment of error is whether or not a letter dated September 23, 1909, and written by Cass Gilbert, the architect, to the plaintiffs in error, was admissible in evidence.This letter when offered by plaintiffs was objected to by counsel for defendant and was excluded....