The Hawaiian gazette., 1889-10-01

JUDD, {. COlsL1s fhhSAONt oAShK@hANEN
AND DOLE, J.J.
Opinion of the Court by Dole J.
This is an action of assumpsit in
which the plaintiff claims OF the
defendant, executor of the viii of
Maria King, deceased, a certain
sum of money for services alleged
to have been performed by him for
her, during her lifetime, at her re-
quest. The case was tried at the
last January term of this Court; the
jury returned a verdict for the de-
PENDANT, to which the plaintiff ex-
cepted as contrary to the law and
evidence, and afterwards filed
motion for a new trial on the fol-
lowing grounds:
81. That the verdict of the jury
is contrary to law and the weight
of evidence. >. That the plaintiff
has discovered new evidence which
is material and important and was
To him unknown previous to the
trial of said case. 8. Misconduct
of the jury"
Affidavits of the plaintiff and of
Kekahuna and Kahoa, the alleged
newly discovered witnesses, were
filed later. The motion was argued
and overruled on the second day of
April, and the plaintiffs bill of eX-
ceptions thereupon filed on the
same day. At the argument of the
motion for a new trial, the third
ground of the motion, to wit; mis-
conduct of the jury, was not urged
by plaintiffs counsel. On the first
ground of the motion, to wit: that
the verdict was contrary TO law and
the weight of evidence, we do not
find any issue of law raised by the
bill of exceptions further than the
question whether the verdict was
contrary to the evidence, and on
this question we are well satisfied
that tho evidence in the case raised
an issue of fact which was within
the province of the jury, and that
there was sufficient evidence to
justify the verdict.
The alleged newly discovered
evidence appears to be the ground
mainly relied on by the plaintiff in
his motion for a new trial. Upon
examination of the affdavits of Ke-
kahuna and Kahoa, we find that
the matters which they are ready
TO testify to are in the nature of
cumulative evidence. kekahuna
says in substance that he did not
know that plaintiff was the hired
servant of the deceased until upon
one occasion when he was "work-
ing on the division fence between
said Maria Kings land and that of
the Hui, when Mrs. King said to
him that said Clement was hired
by her at the rate of $40 per month
and that she was going to charge
the Hui for his wages $3.50 per
day." that she afterwards referred
TO plaintiff as being employed by
her as manager of her ranch and
general property, and referred de-
ponent's application for leases of her
lands, TO plaintiff as her trusted
servant that she said during the
building of the division fence, that
she preferred to hire a man of
Clements ability at stated wages,
to having the unpaid assistance of
natives. Kahoa's affidavit is to the1
same effect, with the additional
statements of a dispute between
plaintiff and decedent about a sum
of one hundred dollars which plain
tiff wanted and which she refused
and said she would not pay him
the balance she owed him until he
resorted to the Courts, and of a
subsequent conversation of the de-
cedent, when she told deponent
tnat she did not want to pay plain
tiff all that was due him for wages
as he would spend it foolishly up
there, and that she wanted to take
care of it for him, but did not men
ton the amount of such balance.
1t appears by the report of the
evidence in the case which forms a
part of the bill of exceptions, that
James Kahe, one of plaintiffs wit
neSSes, testified that Mrs. King
said in connection with the fence
referred to, that plaintiff was work
ing for her and that his wages We're
$50 or over per month, and that
she claimed $3.50 a day for his
work on the division fence, and
that she had paid him that amount:
kaikala, another witness for the
plaintiff, testified at the trial, of
having heard Mrs. King say that
plaintiff was working for her under
pay.
1t will be seen from this compar-
ison of the affidavits with the testi-
mony introduced at the trial, that
the newly discovered testimony is
on the same line with much that
has been already considered by the
jury, being evidence of admissions
and conversations of Mrs. King as
TO the plaintiffs business relations
with her. This being the case, it |
is not a sufficient reason for a new