The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1890-09-26
Supreme Court of the Hawaiian
Islands.
July Term, 1890.
L. j. HILLS VS. j. L. Brown.
on APPEAL FROM DECISION OF BECKER
Toy, j., SUSTAINING A PLEA IN BAR.
JUDD, C. j., M'ctLLY, BIoKERroN, AND
DOLE, J. J.


The defendant to the action on his pro-
mlssory note pleaded in reconpment 2
the plaintiff for which this note was
part payment, to which the plaintiff in
replication pleaded that-in prior suit
il had been adjudged that this defend
ant could not recover therefor.
Held. That the doctrine of "res Judi
cata was applicable and the plea i'm
bar was sustained.
OPINION OF THE COURT BY M'cULLY, J.
This is an action of assumpsit on
promissory note, part of the con-
sideration in the sale of a plant and
material for the manufacture of
aerated waters.
The defendant pleaded in recoup-
ment failure in quantity Of GER
tain material and failure in quail
ty as to some other, to which de-
Tense the plaintiff made replication
setting up in bar to the defendants
plea, the judgment of the Court in a
previous suit. The Court below sus-
tanned the plea in bar to which de-
PENDANT excepted.
We are referred by the bill of ex-
ceptions to the proceedings in the
previous suit of Brown VS.. Hills.
The plaintiff therein claimed, intsr
ala, that he purchased certain arti-
cles and commodities used in and
necessary for the manufacture and
carrying on of the said business (of
making aerated waters), as set out in
certain inventory furnished by the
defendant, among which there were,
to wit, 800 dozen bottles, valued and
purchased at the price of six hun
dred dollars, also certain essences
valued in the said inventory at four
hundred and fifty dollars.
It was alleged in the complaint
that the bottles fell short five hun
dred dozen, and that the essences
were spoiled and unfit to be used, ex-
cept to the extent of $95.7S in value.
The case was tried before the late
Mr.. Justice Preston, jury waived.
The learned Justice ordered judg-
ment to be entered for the defendant
Hills, basing it upon two grounds.
first, that the evidence showed that
the sale was made to plaintiff Brown
by Hills and Nuu Vahine, who was
non-joined in the action, and second
ly because the allegation of sale by
inventory specifying the separate
value of the items was not support
Ell, the proof being of bill Of sale
in which there is some enumeration
of the items sold, but only lump
valuation for them and the goodwill
of the business, including a covenant
not to engage again in such bust
ness in Honolulu.
The Court said: " There is no evil
dence to support the allegation of
sale OF the essences, etc., for $3.50.
The sale was of the goodwill and
stock for $1,000, and it cannot be
maintained that any particular item
was sold at a specific price,"
The defendant now offers to show
sale by inventory of articles and
prices, and the losses in RESPECT to
two items, which was one OF the is
sues decided before; that is, had be-
come a res judicata. u. S. VS.. LETTER,
IL Peters, 101, eff there be any one
principle of law settled beyond ques-
ton, it is this; that whensoever
cause of action in the language of
the law transit in rem judicdtam, and
the judgment thereon remains in full
force unreversed, the original cause
of action is merged and gone for
ever"
The application of the doctrine to
this case is not affected by the fact
that the Court found that there was
non joinder of defendants, it hav-
ing distinctly adjudged upon the
issue as if the proper parties had
been joined.
The plaintiffs plea in bar is sus-
tanned.
Cecil Brown for the plaintiff; Paul
| Neumapn for the defendant.
Honolulu, Sept. 10, 1890.