Montgomery v. Pfluger

3 Haw. 388

• Court: Hawaii Supreme Court
• Decided: October 15, 1872
• Status: Published

Opinion

OPINION OF THE COURT.

The defendant’s endorsement on the plaintiff’s bill denies the agreement, but tends to show the receipt of hay, and was therefore correctly admitted.

E. Preston for plaintiff". R. H. Stanley and W. C. Jones for defendant. Honolulu, December 4th, 1872.

The plaintiff’s book of original entries was properly admitted, considering the small amount of the claim, that he had no clerk, that delivery of some hay was otherwise shown, and that the dates and amounts of delivery could not otherwise be shown. Such evidence is admitted in such cases ex necessitate rei. An original entry is a fact which if material may be given in evidence consistently with the statute which prevents parties from testifying in their own behalf.

Evidence was given to support the findings of fact, and the conflicting evidence in the case does not authorize us to set aside those findings. Verdicts'resting on legal evidence are only disturbed in cases coming within the well settled rules of law, as established by numerous decisions of, this Court.

The plaintiff’s servant acted for the plaintiff" in delivering hay, and the defendant’s groom in asking for and receiving hay, acted for the defendant. Under all the circumstances in evidence, there was ground to infer that the defendant himself accepted and had the benefit of the hay, under an implied promise to pay its value. No value of the manure was shown, nor is it clear that this was agreed to be the consideration to be paid for the hay. As the Court were not satisfied that a special contract was made, only an action lay for an implied promise to pay the value of the hay.

The exceptions are overruled, and the judgment for the plaintiff is affirmed.