Territory Hawai`i v. Branco
| Decision Date | 17 February 1958 |
| Docket Number | No. 3069.,3069. |
| Citation | 42 Haw. 304 |
| Court | Hawaii Supreme Court |
| Parties | TERRITORY OF HAWAII v. DAVID W. BRANCO. |
OPINION TEXT STARTS HEREAPPEAL FROM CIRCUIT COURT THIRD CIRCUIT, HON. MAURICE SAPIENZA, JUDGE.
Syllabus by the Court
Court will allow a pleading to be amended for the admission of evidence, over the objection of a party on the ground that the evidence is not within the issues made by the pleading, if the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. (Hawaii Rules of Civil Procedure, Rule 15 [[[[b])
A pleading may be amended to cause it to conform to the evidence when issues not raised by the pleading are tried by express or implied consent of the parties. Such amendment may be made at any time, even after judgment and appeal. (Hawaii Rules of Civil Procedure, Rule 15 [b])
Under Hawaii Rules of Civil Procedure, Rule 7 (a), an answer may not be waived, and there is no waiver where a party proceeds to present its evidence before the filing of an answer.
Photostatic copy of official record may not be admitted in evidence under Hawaii Rules of Civil Procedure, Rule 44 (a), unless it is accompanied with a certificate of authenticity signed by the officer who has the legal custody of the record.
Under Hawaii Rules of Civil Procedure, Rule 43 (c), an offer of proof as to excluded evidence is not essential to preserve the question for appeal if the nature of the error is otherwise clear; but, if the significance of the excluded evidence is not obvious, it must be brought to the attention of the court and an offer of proof made in order to preserve the question for appeal.
Court will grant the relief to which a party is entitled under the evidence adduced even if he has not demanded such relief in his pleading. (Hawaii Rules of Civil Procedure, Rule 54 [c])
A motion for nonsuit made after the adoption of Hawaii Rules of Civil Procedure is treated as a motion to dismiss under rule 41 (b).
A motion to dismiss under Hawaii Rules of Civil Procedure, Rule 41 (b), is not equivalent to a motion for nonsuit. Under a motion for nonsuit before the adoption of the rules, a plaintiff would have been nonsuited if he did not prove the allegations of his complaint. Under rule 41 (b) a motion to dismiss is granted only if the plaintiff shows no right to relief. Right to relief under the rules does not depend upon a party's allegations in his pleading or his theory of the case, but upon the evidence adduced.
When issues not raised by a pleading are tried by express or implied consent of the parties, they are treated in all respects as if they had been raised in the pleading. Failure to amend the pleading does not affect the result of the trial of these issues. (Hawaii Rules of Civil Procedure, Rule 15 [b])
At an auction an enforceable contract is formed upon the fall of the hammer.
A memorandum of a contract is sufficient to satisfy the statute although it contains a request for a release from, or a repudiation of, the contract, if it contains an express or implicit admission that the contract was made.Robert K. Fukuda, Deputy Attorney General ( Edward N. Sylva, Attorney General, with him on the briefs) for the Territory, plaintiff-appellant.
Kenneth E. Young (also on the brief) for defendant-appellee.
This is an appeal by the Territory of Hawaii, plaintiff below, from a judgment of nonsuit entered by the circuit court of the third circuit on motion by David Branco, defendant, after the Territory presented its evidence and rested.
The initial phase of the trial proceeded on the Territory's first amended complaint and the defendant's answer thereto.
The Territory set forth two causes of action and prayed for judgment against the defendant for $1,355, plus interest, under one cause of action, and for $1,375, plus interest, under the other cause of action.
As its first cause of action, the Territory alleged that it entered into General Lease No. 3240, an unexecuted copy of which was attached to the complaint as Exhibit “A”, in which it leased the land described therein to the defendant for twenty-one years from January 15, 1948, at an annual rent of $1,355, payable semiannually in advance on January 15 and July 15, and, in the alternative, that it entered into an oral lease of the same land with the defendant for the same period and at the same rent, and that the defendant failed to pay the rent for one year from July 15, 1948, to July 14, 1949.
As its second cause of action, the Territory alleged that it entered into General Lease No. 3241, an unexecuted copy of which was attached to the complaint as Exhibit “B”, in which it leased the land described therein to the defendant for twenty-one years from January 15, 1948, at an annual rent of $1,375, payable semiannually in advance on January 15 and July 15, and, in the alternative, that it entered into an oral lease of the same land with the defendant for the same period and at the same rent, and that the defendant failed to pay the rent for one year from July 15, 1948, to July 14, 1949.
In his answer, the defendant denied the Territory's allegations and, in addition thereto, alleged that sometime before January 15, 1948, the duly authorized agent of the commissioner of public lands represented to him that certain government lands would be offered for lease at public auction by the commissioner, that he bid at the auction for the leases of the lands described to him by the agent, that he later discovered that the lands offered for lease at the auction differed from the lands described to him by the agent, and that the agent later stated to him that he made an error in describing to him the lands that were offered for lease at the auction.
The Territory presented evidence which showed that the commissioner of public lands published a notice of auction sale of two twenty-one year leases of government lands in Kau, Hawaii, to be held on January 15, 1948, one covering 2,278 acres, more or less, at Moaula-Kopu-Makaka Makai, and the other covering 1,886 acres, more or less, at Kaalaala Makai; that the auction was held, according to the notice, by an agent of the commissioner; that the defendant bid an annual rent of $1,355 for the lease of the Moaula-Kopu-Makaka Makai land and an annual rent of $1,375 for the lease of the Kaalaala Makai land; that the defendant's bids were the highest bids for the leases; that upon completion of the auction, the defendant paid to the agent six months' rent and pro rata share of advertising costs and other expenses incident to the auction; that on September 27, 1948, the commissioner sent to the agent Lease No. 3240, covering the Moaula-Kopu-Makaka Makai land, and Lease No. 3241, covering the Kaalaala Makai land, for execution by the defendant; that the defendant obtained the leases from the agent on November 27, 1948; that the defendant returned the leases to the agent on December 4, 1948, without affixing his signature on the ground that he could not obtain any water on the lands covered by the leases; that on April 14, 1949, the defendant wrote to the commissioner requesting that he be relieved from the obligation of signing the leases on the grounds that he bid for the leases on the basis of “unofficial information” regarding the boundaries of the lands to be included in the leases and the possibility of obtaining water on the lands, that tentative sketches of the lands indicated that there were at least thirty acres of good cane land and a well or spring within the boundaries, and that the lands described in the leases submitted for his signature included only six acres of cane land and did not have any source from which water could be obtained; and that the defendant made no payment on account of the leases other than the six months' rent that was paid upon the completion of the auction.
After presenting such evidence, the Territory rested. The defendant, thereupon, moved for a nonsuit on the ground that the Territory failed to establish a prima facie case. In support of his motion, the defendant adverted to the fact that there was no showing of compliance with section 73 (1) of the Organic Act. That section of the Organic Act provides that no lease of agricultural lands exceeding forty acres in area, or of pastoral lands exceeding two hundred acres in area, shall be made without the approval of two-thirds of the board of public lands.
The Territory then requested the reopening of the case and the continuance of trial for the purpose of obtaining and presenting evidence regarding the approval of the sale of the leases by the board. Over the defendant's objection, the court granted the request.
At the further trial, the Territory proceeded to present its evidence regarding the requisite board action. The defendant objected to the introduction of such evidence on the ground that the complaint did not contain any allegation concerning the action of the board. The Territory met this objection by requesting leave to amend the complaint by adding the following allegation: “That the Board of Public Lands of the Territory of Hawaii did approve on May 15, 1946, and again on June 16, 1947, all in accordance with law, the lease by public auction sale of those certain lands set forth and described in Exhibits ‘A’ and ‘B’, attached to plaintiff's original Complaint and made a part of said original Complaint and also made a part of this Second Amended Complaint.” The court allowed the amendment under rule 15 (b) of Hawaii Rules of Civil Procedure, which provides: “If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of...
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