Scott v. Kona Dev. Co.

• Decision Date: 23 January 1913
• Citation: 21 Haw. 408
• Parties: M. F. SCOTT AND NETTIE L. SCOTT v. KONA DEVELOPMENT COMPANY, LIMITED, A CORPORATION.
• Court: Hawaii Supreme Court

21 Haw. 408

M. F. SCOTT AND NETTIE L. SCOTT

v.KONA DEVELOPMENT COMPANY, LIMITED, A CORPORATION.

Supreme Court of the Territory of Hawai‘i.

Argued November 25, 1912.

Decided January 23, 1913.

EXCEPTIONS FROM CIRCUIT COURT, THIRD CIRCUIT.

Syllabus by the Court

In the absence of statute the rule is that the non-joinder of a defendant in an action ex contractu can be taken advantage of, when the defect is not apparent on the face of the declaration, only by plea in abatement and that when such a plea is not presented an answer of general denial and trial on the merits constitute a waiver of the defect. Section 1736, R. L., does not alter the rule.

A breach of the promise declared on is of the essence of the action of assumpsit.

When in an action of assumpsit the allegation is that the defendant promised to pay a stated sum of money and neglects and refuses to pay the same or any part thereof and the undisputed evidence is that the defendant's promise was to execute certain promissory notes and to deposit them with a trustee as security for the payment of plaintiff's indebtedness to defendant in an unascertained amount and that all the parties agreed that the notes should not be delivered by the trustee to the payees until after the determination, by agreement, by arbitration or by judicial adjudication, of the amount of the plaintiff's indebtedness and that then such only of the notes should be delivered as were not consumed in the payment of that indebtedness, and the undisputed evidence further is that the defendant has performed all of his part of the contract in so far as the same is possible of performance until the due determination of the amount of the plaintiff's indebtedness and that the amount has not been ascertained in any of the methods prescribed, there is an utter failure of proof of the breach, if not of the promise also, and a judgment of nonsuit may properly be entered.

A motion for a nonsuit may be granted even though made at the close of all of the evidence in the case, provided only that the defendant's evidence does not cure the defect complained of in the plaintiff's proof.

Defendant's attorneys' fees under section 1892, R. L., are not taxable in an action of assumpsit in which judgment of nonsuit is entered for failure of proof.

Traveling expenses of witnesses not subpoenaed are not taxable as costs.

Sums paid for compensation of expert witnesses beyond ordinary fees authorized by statute for witnesses generally are not taxable as costs under section 1889, R. L., relating to “actual disbursements * * * deemed reasonable by the taxing officer.”

F. W. Milverton ( J. W. Cathcart with him on the brief) for plaintiffs.

D. L. Withington and A. L. Castle ( Castle & Withington on the brief) for defendant.

ROBERTSON, C.J., PERRY AND DE BOLT, JJ.

OPINION OF THE COURT BY PERRY, J.

This is an action at law, ex contractu, for the recovery from the sole defendant of the sum of $57,026.61. The trial court found that the promise declared on was made by James B. Castle and F. B. McStocker jointly with the defendant and rendered judgment for defendant on the sole ground of “non-joinder of proper parties defendant” and plaintiffs excepted.

The fact, if fact it was, that there were three joint promisors did not appear on the face of the declaration and therefore the defect, if any, could not have been taken advantage of by demurrer; but the objection could have been raised by plea in abatement. No such plea was presented. The defendant filed an answer of general denial and proceeded to trial on the merits, the actual trial occupying a period of ninety-six days, commencing on September 20, 1910, and continuing, with intermissions, until August 16, 1911. Not until the last day of the trial was the contention advanced that there was a non-joinder of parties defendant. The injustice of permitting the defendant to keep the point in reserve and to raise it for the first time at the end of the trial is obvious. By its silence the defendant must be held to have waived the objection. The rule is well settled that in the absence of statute the non-joinder of a defendant in an action ex contractu can be taken advantage of, when the defect is not apparent on the face of the declaration, only by plea in abatement and that failing such a plea an answer of general denial and trial on the merits constitute a waiver of the defect. “The objection, however,” (that plaintiff sued two or more but not all of joint and several obligors) “is not fatal to the merits, but is pleadable in abatement only; and if not so pleaded, it is waived by pleading to the merits. The reason is, that the obligation is still the deed of all the obligors who are sued, though not solely their deed; and therefore there is no variance in point of law, between the deed declared on and that proved. It is still the joint deed of the parties sued, although others have joined in it.” Minor v. Mechanics' Bank, 1 Pet. 46, 73. “Generally speaking, all joint obligors and other persons bound by covenants, contract, or quasi contract, ought to be made parties to the suit, and the plaintiff may be compelled to join them all, by a plea in abatement for the non-joinder. But such an objection can only be taken advantage of by a plea in abatement; for if one party only is sued, it is not matter in bar of the suit, or in arrest of judgment, upon the finding of the jury, or of variance in evidence upon the trial.” Gilman v. Rives, 10 Pet. 298, 299. “In actions of contract, non-joinder of parties jointly liable as defendants can only be taken advantage of by plea in abatement. In this case the right to plead in abatement was lost, by filing an affidavit of merits with an answer in bar.” Leonard v. Speidel, 104 Mass. 356, 359. “Nor does it matter that the declaration is upon an individual contract. A joint contract is not at variance with the count. It is still the undertaking of the defendant in solido; though being with another, he has the right to have that other brought in, but only in the very first stage of the cause, by plea in abatement.” Collins v. Smith, 78 Pa. St. 423, 425, 426. “The objection should have been taken advantage of, if at all, by a plea in abatement. The general rule that the non-joinder of a defendant can be taken advantage of only by plea in abatement, is elementary.” Hyde v. Lawrence, 49 Vt. 361, 363. “The rule in regard to non-joinder is well settled and has not been questioned since the case of Rice v. Shute, 5 Burr. 2611. * * * If the defendant would take advantage of the non-joinder he must do it at the proper time by a plea in abatement.” Merson v. Hobensack, 22 N. J. L. 372, 379. “It is argued, further, on behalf of the plaintiff in error, that the judgment against him alone, on the joint note of Coe and himself, is erroneous and must be set aside. Although the institution of a suit against Hennessy alone, upon the joint note of Hennessy and Coe, was undoubtedly irregular, yet, we are of the opinion that it is such an irregularity as ought to have been taken advantage of, by plea in abatement, or, perhaps, demurrer under our mode of pleading; and, if not so taken advantage of, must be held to be waived. This is an objection which goes rather to the mode of proceeding, than to the merits of the action.” Hennessy v. Bolles, 2 Haw. 184, 187. See also Dayton v. Hopkins, 10 Haw. 540; Converse v. Symmes, 10 Mass. 377; Prunty v. Mitchell, 76 Va. 169; White v. Cushing, 30 Me. 267;Lieberman v. Brothers, 26 Atl. 828; Bignold v. Carr, 24 Wash. 413; Schroder v. Pinch, 126 Mich. 185; Armour v. Ward, 61 Atl. 765;Allen v. Sewall, 2 Wend. 327;Nickerson v. Spindell, 164 Mass. 25; Porter v. Leache, 56 Mich. 40;Wilson v. McCormick, 86 Va. 995.

The provision of section 1736 R. L., that under the general issue “the defendant may give in evidence, as a defense to any civil action, any matter of law or fact whatever,” does not render the rule above stated inapplicable or ineffective in this jurisdiction. The matter receivable in evidence under this provision must be a defense to the action. That others not named as defendants promised jointly with the defendant does not operate in bar and is not a defense for it remains true in spite of their co-promise that the defendant promised as alleged; and for the same reason there is no variance between the pleading and the proof in such a case. The allegation that the defendant promised is proven, even though it further appear that others joined with him in the promise. Cases supra.

Heeia Plantation Co. v. McKeague, 5 Haw. 101, is not an authority to the contrary. In that case the plaintiff, a foreign corporation, sued without alleging its compliance with the law which denied to a foreign corporation the benefit of the laws of the Kingdom unless it should file in the office of the minister of the interior a designation of a person upon whom service of process could be made. The question of the defectiveness of the declaration in this respect was raised by demurrer, the demurrer was sustained and the plaintiff was given leave to amend. The court said, inter alia: “In those countries where the common law exists, the rules of special pleading would require that the question, as to the corporate character of the plaintiff, be made by a plea in abatement, since by pleading to the merits, the defendant admits the capacity of the plaintiff to sue. But the plea of the general issue by our statute allows the defendant ‘to give in evidence, as a defense to any civil action, any matter of law or fact whatever.’ Civil Code, Secs. 1106 and 1107. And under this plea, the plaintiff, on its amended petition, should be required to show its corporate existence and its compliance with the law.” To say nothing of other possible methods of distinguishing the case, it may be noted that the question there was whether the plaintiff was one of the class of corporations to which our statute expressly denied the benefit of our...