Magoon v. Marks

• Decision Date: 12 April 1899
• Citation: 11 Haw. 764
• Parties: J. A. MAGOON v. L. MARKS.
• Court: Hawaii Supreme Court

11 Haw. 764

J. A. MAGOON v. L. MARKS.

Supreme Court of Republic of Hawai'i.

April 12, 1899

Submitted March 21, 1899.

EXCRETIONS FROM CIRCUIT COURT, FIRST CIRCUIT.

Syllabus by the Court

Where defendant has not pleaded a set-off he should neither be allowed to prove one himself nor to have the benefit of one against plaintiff's objection where it appears from plaintiff's evidence that there exists a claim which might have been made the subject of a set-off.

A promise to pay extra for the doing of what the promisee was already under obligation to the promisor to do is without consideration. The question whether such was the nature of the promise in this case should have gone to the jury.

J. A Magoon and R. D. Silliman for plaintiff.

G. A Davis for defendant.

JUDD C.J., FREAR AND WHITING, JJ.

OPINION

FREAR J.

Defendant took possession of the furniture and undertaking business took one E. A. Williams for the purpose of foreclosing a chattel mortgage thereon but employed Williams to conduct the business until the sale at a salary of twenty-five dollars a week and at the same time or a little later promised an additional one hundred dollars for conducting or doing his best in conducting the funeral of the late British Commissioner A. G. S. Hawes. Afterwards Williams sold his claim for the one hundred dollars to the plaintiff who now brings this action thereon. He obtained judgment in the district court but lost on defendant's appeal to the circuit court and the case comes here on his exceptions to rulings of the circuit judge admitting and refusing to admit certain testimony and directing a verdict for the defendant.

The defenses were set-off and want of consideration, and the questions raised by the exceptions are whether the former was permissible under the pleadings and, if not, whether there was evidence to go to the jury on the latter.

Under the statute (Act 7, Laws of 1898) these defenses could be set up against the plaintiff if they could be set up against his assignor, Williams.

1. Set-off. It appears in plaintiff's case that Williams owed defendant about three hundred dollars on another claim and after plaintiff rested defendant offered evidence to prove that claim. Plaintiff objected on the ground that set-off had not been pleaded and that he had a right to know what the set-off was and its different items, but the trial judge admitted the evidence on the ground that plaintiff had full knowledge of what the set-off was as it had come out in his own case, and later he directed a verdict for defendant on the ground that the set-off had been established. In our opinion this was error. The fact that plaintiff had knowledge of the claim relied on as a set-off did not avoid the necessity of defendant's having pleaded it. Defendant could not properly introduce evidence to prove a set-off without having pleaded it, whether plaintiff knew of it or not-any more than plaintiff could properly introduce evidence of a claim not declared on because defendant knew of it. And...