Zen v. Koon Chan

OPINION OF THE COURT BY PERRY, J. (Circuit Judge O’Brien dissenting.) This is an action of assumpsit upon a promissory note for $1000. A verdict having been rendered for the plaintiff and judgment entered thereon, the. case comes to this court by writ of error. In the action as originally instituted, twenty-three persons were named as defendants who were in the declaration alleged to be copartners doing business under the — 370 — firm name of Honolulu Cracker Company. The Honolulu Cracker Company, Limited, an Hawaiian corporation, was also named as a defendant. During the trial, upon motion of the plaintiff, the names of five other persons, also alleged to he members of the same copartnership, were added as parties defendant and the names of S. Ogata and C. F. Zen, originally included as defendants, were stricken, the first of these on the ground that the evidence showed that there was no such member of the copartnership and the second on the ground that the evidence showed that “there is no obligation on his part” under the law of the Territory of Hawaii. By direction of the court verdict was rendered against nineteen of the defendants who were found to he members of the partnership at the date of the execution of the note and against the corporation. Judgment was entered accordingly. C. F. Zen was the husband of Amoy Zen, .plaintiff, at the time of the execution of the promissory note which is the subject of this action. The note.sued on was given.by the Honolulu Cracker Company, the copartnership, and C. F. Zen was a member of that copartnership at the time of the execution of the note. The consideration for the note was the loan of the sum of $4000 by the payee, Mrs. Zen, to the Honolulu Cracker Company, the copartnership. One of the main questions argued under the assignments of error relates to the effect upon this action of the fact that C. F. Zen and the plaintiff were husband and wife. There can be no doubt that under our statutes a husband and wife cannot contract with each other and cannot sue each other; hut does the fact of the inclusion of C. F. Zen, the husband, in the list of parties defendant require judgment in favor of all of the defendants? It is true that in a note by the members of a partnership the obligation of the partners is joint and not joint and sev — 371 — eral; but in the case of the joinder as a joint party defendant of one under age, it has been held — and correctly, as we think, — that upon disaffirmance by the minor and plea of his infancy, the minor may be discharged and judgment recovered against the others. 7 A. & E. Ency. L. 101, 102; Hartness v. Thompson, 5 Johns. 160, 161; Allen v. Butler, 9 Vt. 120, 127; and Woodward v. Newhall, 1 Pick. 500. In the case of the inclusion as a joint party defendant of one subsequently found to have been insane at the date of the transaction, the same rule would he applicable. The same principle we think applies in the case of one whose legal disability was that he was the husband of the other contracting party. Our statute does render void the attempted contract between the wife and the husband but it does not, either expressly or by implication, attach the same invalidity to others who at the same time deal with the wife. The fact that a twentieth person who had not the power to contract with the plaintiff attempted to join with the nineteen defendants named in the verdict in jointly promising to return the money to her should not in justice or in equity — and we think it does not in law — protect the nineteen from having a judgment rendered against them. A minor’s act and that of an alleged insane person are voidable only but they become void upon disaffirmance by the minor on coming of age and by the insane person upon attaining sanity. On reason the three instances of the minor, the insane person and the husband stand upon the same footing. Each is at liberty to plead his legal incapacity and to ask to have his name stricken as a party defendant hut the remaining parties are nevertheless liable and recovery may be had against them. At the time of its formation, the corporation took over the assets and business of the partnership and covenanted in writing with the outgoing partners, to save them — 372 — “harmless and free of all expense or costs or whatever obligations may be due on said partnership” and agreed that it would “pay and discharge all of said claims of what nature and kind soever properly chargeable to and against the former partnership known as the Honolulu Cracker Company.” In view of the verdict against the corporation, the question has been presented in the briefs and in oral argument whether a creditor can at law sue a promisor upon a promise made by him to the debtor to pay the debt due to the creditor and to save the debtor harmless from the claim of the creditor, in the absence of a novation. This question, however, does not arise under any of the assignments of error, unless it be under the ninth or the tenth, reading respectively, “that the verdict in said cause is contrary to law” and “that the judgment in said cause is contrary to law.” The statute (R. L. 1915, Sec. 2528, as amended by L. 1919, Act 44, Sec. 7) requires that “an assignment of errors shall be filed with the application for the writ.” The purpose of the statute doubtless was to apprise the defendants in error and the court of the issues of law sought to be presented for determination. A statement that a verdict or a judgment “is contrary to law” is too general and vague to serve the purpose mentioned or to satisfy the statutory requirement. It does not definitely indicate to the opposite party or to the court what the precise error is which is relied upon. Under the charge that a verdict is “contrary to law” it is possible to conceive of any one or more of a large number of possible errors as constituting the ground of attack on the verdict. What point or points are relied upon to set aside the verdict should not be left to mere surmise or to an exhaustive study of the record as a whole. The statute contemplates clear and definite information on the subject from the plaintiff in error at the time of suing out the writ. — 373 — “Each specification of error, like a paragraph or count of a pleading, must be single, clear, certain and complete in itself.” 2 Ency. Pl. & Pr. 938. “It will generally be entirely insufficient to merely allege that the judgment or decree is contrary to the law and evidence, or not supported by the law and evidence, without designating the particular defects.” Ib. 955. To the same effect are: Brigham v. Retelsdorf, 73 Ia. 712; Newmark v. Marks, 28 Pac. (Ariz.) 960; Davis v. Scott, 13 Ind. 506; Clear Creek Co. v. Root, 1 Colo. 374; Malone v. Del Norte, 77 Cal. 217; and 3 C. J. 1357. Upon an analogous point, it is well settled in this jurisdiction that “the object of an exception as contemplated by the statute is to bring to this court a specific question of law upon which the trial court has erroneously ruled to the prejudice of the party excepting, and not to enable a party to cast the entire case upon the court for review. Such a loose method of practice is unfair to both the opposite party and the court.” Fraga v. Portuguese Mut. Ben. Soc., 10 Haw. 128, 129. “Nor did the general exception by the defendants to the decision as contrary to law and the evidence present this question.” Territory v. Puahi, 18 Haw. 649, 655. “The only exception under which it could have been raised is the general exception to the judgment and decision as contrary to the law and the evidence and this exception is too general to bring to this court a question of law which has not been called to the attention of the court below and made the subject of a ruling.” McCandless v. Honolulu Plantation Co., 19 Haw. 239, 242. “In a long line of decisions this court has held that exceptions must be sufficiently definite and specific to call to the attention of this court a point of law which was called to the attention of the trial court affecting the legality of its ruling, thus giving the lower court an opportunity to correct its ruling if erroneous. — 374 — * * * ‘Counsel have no right to cast the burden on the court of searching through a voluminous record to find the ground of his objection and where the errors complained of are not squarely presented by the bill of exceptions, as in this exception, we shall follow the practice of this court and refuse to consider them.’ ” Ripley & Davis v. Kapiolani Estate, 22 Haw. 507, 508, 509. See also Scott v. Kona Development Co., 21 Haw. 258, 263, and Kapela v. Gilliland, 22 Haw. 655, 659. Another error assigned is that the trial court erred in denying the cost bill of the defendants, Choy Moon Hung, T. M. Kon, Au Tai Kau, Ching Ma Keen, Ching Hong Fatt, Lee Fai, Hee York Ting, Au Sek Yun, Au Yuen Mew, Chang Mau Tai, Ching Shee (Tr.), Ching Kim Yuen (Tr.), Leong Wah Chee and Leong Kwan Yau. In the verdict as rendered by the jury the plaintiff was the prevailing party and all of the persons mentioned in this assignment of error were unsuccessful defendants. The order denying them costs was correct. In view of our conclusion, for the reasons above stated, that the verdict and the judgment against the corporation as well as against the other defendants must stand, it is unnecessary to consider the plaintiff’s motion to dismiss the writ of error on the ground that the corporation “has not been made a party to the writ of error” and that “all parties to a joint judgment must join in the writ” or to consider the further question, suggested by the court and argued by counsel, whether the corporation is to be considered in law upon the record before us as a plaintiff in error and whether it is now in a position to argue any question as a plaintiff in error. The other defendants against whom the verdict was entered are not, of course, aggrieved by the fact that the verdict and the judgment provide for a recovery in favor of the plaintiff against the corporation as well as against themselves. A. Cf. Smith (Peters & Smith and Smith & Wild on the briefs) for plaintiffs in error. B. S. TJlrich and Marguerite K. Ashford (Thompson, Oathcart & Ulrich, S. W. Fitzherbert and Marguerite K. Ashford on the briefs) for defendant in error. The judgment is affirmed.