Saiki v. Sing

• Decision Date: 28 August 1923
• Docket Number: No. 1417.,1417.
• Citation: 27 Haw. 399
• Parties: M. SAIKI AND T. MATSUMOTO v. LEE SING.
• Court: Hawaii Supreme Court

27 Haw. 399

M. SAIKI AND T. MATSUMOTO

v.LEE SING.

No. 1417.

Supreme Court of the Territory of Hawai‘i.

Submitted May 29, 1923.

Decided August 28, 1923.

OPINION TEXT STARTS HEREEXCEPTIONS FROM CIRCUIT COURT FIRST CIRCUIT. HON. J. T. DEBOLT, JUDGE.

Syllabus by the Court

Objections not raised in the court below cannot be raised for the first time on appeal.

A provision in a building contract that no alterations shall be made in the work except upon the written order of the owner may be waived by the parties.

During the progress of the trial of an action seeking to recover for the erection of a building counsel for plaintiffs requested permission to cut through the floor and dig about the building for the purpose of demonstrating some of the claims of plaintiffs with regard to the nature of the work done. Upon the objection of defendant to this request the trial court ordered the request to be stricken from the record and instructed the jury to entirely disregard the request and the remarks of counsel in relation thereto. Held, that the conduct of counsel in making such request was not so prejudicial to the rights of defendant as to warrant this court's setting the verdict of the jury aside.Watson & Lymer and Marguerite K. Ashford for plaintiffs.

Thompson, Cathcart & Ulrich for defendant.

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

OPINION OF THE COURT BY LINDSAY, J.

This was an action in assumpsit brought by plaintiffs to recover the sum of $9079, the amended complaint alleging that, within eighteen months prior to the commencement of this action, plaintiffs furnished labor and material to defendant the reasonable value of which was $18,552.07 less certain allowances; that the said sum of $18,552.07 is represented by the items of a contract between the parties and by certain extra or additional charges for labor and materials ordered by defendant in and about the building of a theatre building by plaintiffs for defendant; that on account of said sum of $18,552.07 defendant has paid and been credited with by plaintiffs certain sums and allowances leaving due and owing by defendant to plaintiffs $9278.32 but that plaintiffs have sued upon and are willing to accept the sum of $9079 in full settlement of their claim.

The case was tried before a jury which returned a verdict in favor of plaintiffs for $8579. Defendant has brought the case here on exceptions which lie to the trial court's rulings on the admission of evidence, in refusing to strike certain evidence introduced on behalf of plaintiffs, in giving the jury certain instructions on behalf of plaintiffs, in refusing to give the jury a certain instruction requested by defendant, in entering judgment on the verdict of the jury, and in overruling defendant's motion for a new trial.

From the evidence it appears that defendant and plaintiffs on February 16, 1920, entered into an agreement under the terms of which the defendant agreed to provide all materials for the construction of the building in question in accordance with the plans and specifications prepared by one Chang Chan, an architect, also all materials for wiring said building and for the installation of an electric system therein. The plaintiffs, on their part, agreed to furnish all the labor required for the erection of the building and the installation of the electric system for the sum of $4250. The building as originally planned was to be a one-story structure about eighty-nine feet long by sixty-seven feet wide, the front to be of concrete and the side and rear walls to be of corrugated iron. Plaintiffs had practically completed the work contemplated in the original plans when, owing to certain objections by the building authorities, a new architect, Mr. H. L. Kerr, was employed by the defendant to change the plans so as to meet these objections. The change thus made was to turn the building into a stone one, and the building as finally completed was of that material. The building was also lengthened ten feet in the rear and raised four feet in height and a balcony or gallery put in, the raise of four feet applying to the whole length of the building on all sides, and many other changes were made. Mr. Kerr testified that although he was not officially engaged to superintend the erection of the building, he “kept his eye” on the work, visiting it three or four times a week throughout the construction and that the building was finished by plaintiffs in good workmanlike manner.

The first exception relied on by appellant (Exception 2) is that “The Court erred in admitting over objection a certain list identified by the witness Kerr as being a correct statement of the extras sued on, the list being plaintiffs' Exhibit ‘G’.”

The witness Kerr, after having testified to various and sundry changes made to the building as originally planned, was shown a paper purporting to contain a list of changes and extras in the building. On the bottom of this paper was written “O. K. H. L. Kerr.” Mr. Kerr testified that the signature was his and that he had gone over and checked the items contained in said list shortly after the completion of the building. He was then asked by counsel for plaintiffs: “Q Can you state now whether the list which I have in my hand now is a full list and correctly represents all of the work that was done, to your knowledge, on this building, after your employment, and whether or not it includes any work which was not done?” Counsel for defendant objected to the question “as incompetent, irrelevant and immaterial, on the ground there is no showing yet that the witness is in position to state whether all this work was done or not, and no showing as yet that the witness is qualified to speak as to the work having actually been done.” The court then asked the witness: “Referring to the list that Judge Lymer showed you, can you say whether or not that corresponded to the work actually performed upon the building at that time? A That took in all the changes that had been completed when the building was completed and had been taken over.” The court then overruled the objection, to which ruling counsel for defendant excepted. The list was then offered and received in evidence as plaintiffs' Exhibit “G” without objection on the part of defendant, hence the exception now urged that the court erred in admitting said list is not well taken for, as has been repeatedly held by this court, objections which have not been saved in the court below cannot be raised for the first time on appeal. Stanley v. Akoi, 12 Haw. 344, 347; Fraga v. Portuguese Mut. Ben. Soc., 10 Haw. 128; Iaukea v. Cummings, 9 Haw. 558.

The next exception urged is that the court erred in refusing to grant defendant's motion to strike plaintiffs' Exhibit “G,” the evidence showing the exhibit to be a copy made from other documents (Exception 5).

One of the plaintiffs, Mr. Saiki, had testified that the extra work for which plaintiffs were seeking compensation had been performed under the orders of defendant. Saiki was then shown plaintiffs' Exhibit “G” and asked what it was. He answered that it was a copy of the original of his records signed by the architect Kerr. Witness said he gave it to Kerr to be signed. He was then asked, “Q Who made up the list of all these items, who furnished the data and made up this list? A These items were taken from a similar memorandum book and put on that sheet by Miki. Q By Miki, who is sitting here? A Yes. Mr. Cathcart: I move to strike Exhibit G on the ground first that it appears now in evidence that H. L. Kerr, the architect, was not employed by the defendant for any other purpose or any other thing except to approve the plans of this so-called 2d story, that is the plans D and E, and further that it appears that this is a copy of some original book of entry and not in any way an original entry.”

The first ground upon which the motion to strike Exhibit “G” was based in the trial court is not here relied upon as error, the defendant relying only on the second ground of the motion to strike, namely, that Exhibit “G” is a copy of some original book of entry and not an original entry. As already stated, Exhibit “G” was received in evidence without objection on the part of defendant. It is apparent that the exhibit was not offered as an original entry but simply as a memorandum which had been checked at the time by the witness Kerr and which Kerr had testified to as being a correct list of the changes that had been made. There can be no doubt but that it would have been competent for the witness Kerr to have orally testified to these changes, item by item, and he might have been asked to write down a list of the changes made, which written list would have been admissible in evidence. Under the circumstances, therefore, Kerr having testified that he knew that all of the changes set forth in Exhibit “G” had been made there was no error in receiving the exhibit in evidence and the motion to strike was properly denied.

The next error specified is that the court erred in permitting the witness Kerr to testify over objection in amplification of the items contained in plaintiffs' Exhibit “G” (Exception 16).

After Exhibit “G” had been admitted in evidence, the witness Kerr was asked as to each item separately. “Q This item, ‘work on partition,’ is charged at the rate of $160. Can you state whether at the time you wrote ‘O. K. H. L. Kerr’ on the bottom of that sheet, you were familiar with the work covered by that item? A Yes. Q Can you now state whether that charge, $160., when made and when presented to you in this bill, was then, in your opinion, a reasonable charge? Mr. Cathcart: I object to all this examination on the ground that it is incompetent, irrelevant and immaterial; first, that the contract specifies and requires all changes to be made in writing; that there is no evidence sufficient to show that there was any change made between the parties so as to dispense with the requirements of the contract. The second...