Clarke v. Ward

  This cause comes up on a writ of error sued out by Lucy K.
Ward, defendant in the court below, to review a judgment

rendered against her in the circuit court of the first judicial
circuit in favor of Chester R. Clarke, doing business as Clarke
Construction Company. The appellee sought to recover from the
appellant the sum of $3178.92, alleging that sum to be the
balance due for the construction of an automobile racecourse or
speedway in the district of Waikiki, Honolulu. The complaint
contained two counts, one laid in assumpsit and the other upon
quantum meruit, that is, the reasonable value of labor
performed and of the goods and materials furnished in the
construction of the speedway. Appellee confined his evidence to
the latter cause of action. The cause was tried, jury waived, and
at the conclusion of the trial the circuit judge found in favor
of appellee for the full amount sued upon.
  While the plea of the general issue interposed by the appellant
cast upon appellee the necessity of proving by evidence amounting
to more than a scintilla all of the material allegations of his
complaint the record indicates that the appellant relied solely
upon her claim that the debt sued upon was that of another, to
wit, Hawaii Speedway, Limited, a local corporation, and that
under the statute of frauds, namely, section 3900, R.L. 1935, she
could not be held liable for the debt of another in the absence
of any promise or agreement executed by her or some person in her
behalf duly authorized in writing, as provided in the statute
just referred to. The question thus became one of fact. The
evidence introduced at the trial was conflicting. Mr. Clarke
testified in effect that before starting the work he discussed
the contract with Miss Ward with a view to ascertaining from whom
he should look for payment as well as for orders in performing
the work and that he was told by Miss Ward that "you are doing
business with me" and further that he was instructed by Miss Ward
to take orders from her and to submit all figures to her.
Clarke's testimony is to some extent corroborated

by the testimony of other witnesses and documents introduced at
the trial. It is also corroborated by certain circumstances shown
to exist, including the fact that Miss Ward, without objection,
personally made two payments of $1000 each upon the contract
price of the speedway. Miss Ward denied all personal liability
and the existence of any agreement, verbal or otherwise, which
would render her liable in connection with the contract.
  The question being presented on conflicting testimony, it was
peculiarly within the province of the trial judge to determine
the issues. He held that appellant had at the inception assumed
control and direction of the work and agreed to become liable to
the contractor for the value of the labor performed and materials
supplied. In other words, that she became an original obligor and
was not entitled to invoke the statute of frauds as a means of
escaping financial liability to the plaintiff. (See Hackfeld 
Co. v. Wilson, 13 Haw. 212. See also Castle v. Smith,
17 Haw. 32; 99 A.L.R. 76.)
  The supreme court is not authorized to disturb the findings of
fact of a trial judge in a term case presented on a writ of error
where such findings depend upon the credibility of the witnesses
or the weight of the evidence. "Nor shall there be a reversal in
any term case for any * * * finding depending on the credibility
of the witnesses or the weight of the evidence." R.L. 1935, §
3563.
  This court just recently, in Land Title, Waimalu, 33 Haw. 832,
said: "There is perhaps in this jurisdiction no rule of law
more certainly and definitely settled than where a proceeding in
error is presented to this court upon general assignments of
error we will not reverse any findings of fact dependent upon the
credibility of the witnesses or the weight of the evidence. The
court will confine itself to ascertaining whether there is
evidence of that substantial

character amounting to more than a scintilla to support the
findings of the judge or the jury."
  It is further urged by the appellant that the action being
based upon the doctrine of quantum meruit the appellee failed
to prove that the labor and material were furnished or the
reasonable value thereof. Clarke testified that he carried out
the contract under the direction of Miss Ward, both as to
furnishing labor and material. Invoices containing items of labor
and material, together with the charges therefor, were presented
by the contractor from time to time and his "Record of Sales,"
being his book of original entry in which the account was
carried, was introduced in evidence by him. The appellant
complains that these records were not properly identified by the
bookkeeper who made the entries or by any other person qualified
to authenticate them. There would perhaps be some merit in this
contention had there been any objection by the appellant to the
introduction of these records. In the absence of any such
objection they were before the trial judge and were properly
considered by him.
  Mr. Makin, office manager of the Clarke Construction Company,
testified that as shown by the account, and after the two
payments of $1000 each were made by Miss Ward, the remaining
balance due and owing was the sum of $3178.92, this being the sum
for which appellee brought suit. The appellant did not deny that
the labor was performed as claimed by appellee nor did she
question the value of the material and supplies used in carrying
out the terms of the contract.
  Ordinarily books of original record of a contractor are not
admissible as evidence in the absence of the testimony of some
person having knowledge of the transaction unless it be shown
that because of death, absence, inconvenience or incompetency or
otherwise, such person is unobtainable. But it is likewise the
rule that where books are offered in

evidence and are accepted without objection on the part of the
opposing party, such party is not in a position to urge the
objection for the first time in this court. (Commonwealth Irr.
Co. v. Rio Grande C.W. Users' Ass'n., 45 Pac. [2d] 622.)
  The original invoices and the sales ledger were introduced and
became prima facie evidence of the services rendered and the
delivery of the material as well as the value thereof. (See
Radtke v. Taylor, 210 P. 863; Finley v. Pew,
205 P. 310.)
  Appellant's assignments of error numbers 25 and 26 complain of
the trial court's ruling which curtailed her right to
cross-examine one of the appellee's witnesses in reference to
testimony given on direct examination and in which the witness
described the appellee's method of doing business with other
contractors and materialmen. No objection, however, was
interposed by appellant to this testimony. The irrelevancy of
testimony was first called to the attention of the trial judge
when counsel for appellee interposed an objection whereupon the
judge ruled in effect that any transactions between appellee and
third parties unrelated to the issues then being tried were
irrelevant and immaterial. With this we agree. We assume that had
appellant made timely objection the evidence would have been
excluded in the first instance.
  Appellant further complained of the inclusion in the judgment
of an item of $41.25 for services rendered Victoria Ward,
Limited, in clearing the race track premises prior to the
contract between the appellant and appellee. This item became the
subject of controversy at the trial in the court below and
finally counsel for appellee said in reference to it: "In our
original complaint I should like to drop . . . the first item,
showing the claim against the Ward Estate, Ltd., of $41.25. The
first item of $41.25 we should like to omit from our complaint."
To which the

court replied: "That was after suit, so that you leave it reduced
by that amount." (Tr. p. 98.) It therefore seems clear to us that
this item was abandoned by appellee but through inadvertency was
included in the judgment. The judgment appealed from should be
reduced accordingly.
  Appellant further claims that the judgment is defective because
it bears interest from the 30th of April, 1935, at the rate of
six per cent. It is shown, at least inferentially, that the
contract was finished prior to April 30, 1935. Having performed
his contract, the appellee was entitled to payment and in default
thereof to interest at the legal rate until payment was made. It
should be observed that appellee did not raise the question in
the court below. Her counsel merely excepted to the final
decision of the trial judge on the broad and general ground that
it was contrary to the law and the evidence.
  Having carefully examined all of the assignments of error, we
conclude that number 15 should be sustained and the judgment
modified by eliminating therefrom the sum of $41.25 and interest
thereon and all other assignments of error should be and they are
overruled. The cause is remanded to the court below with
instructions to amend the judgment by deducting from the amount
thereof the sum of $41.25 and all interest on the latter amount.