The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1896-07-14

$500 for 1872 hours, $3.50" The
evidence adduced for the defendants
upon this item support their contention
for hours, for their account kept con-
currently with that of the plaintiff con-
tains an item, "Cr by 1917 hours with
team $3.50" But as this is not so much
question of the comparative weight
of evidence adduced on the two sides
as a question of whether the evidence
on the plaintiffs side alone is sufficient
70 support this contention, let us con-
slider that evidence alone. This evil
dence must be taken as whole It is
not sufficient if part of it taken by itself
would support his case, if the effect Of
that part is overcome by other parts
The plaintiff testified that his bills
were made from his ledger, into which
friend copied the items, some from
slips of paper, others from the day
books, and that he (plaintiff) thought
the item of 1872 hours was mistake
and that the correct item is 1917 days
as in the ledger. It thus appears that
plaintiffs testimony is not definite as
to what is the fact, but is merely what
he thinks over year after the work
was done and that this opinion is based
on what third person, a friend, had
copied into the ledger. The best evil
dence is the plaintiffs own slips of pa
per and day books from which the third
party copied into the ledger. The item
appears in one of the day books as
1872 hours work horses" That this
is the item from which the copy in the
! ledger of 1872 days work with horses"
was made, is clear from its date, its
! position with respect to other items,
and the absence of any other item
from which the copy could have been
made. And the item was inserted in
the same way by the plaintiff in an
earlier bill presented by him to the de-
PENDANTS in Washington, 1872 hours
work on road for Horses" 1t may be
added that the accounts appear to have
been loosely kept and that, as found by
the trial judge, there were a number OF
mistakes in plaintiffs bill On the
whole we think the evidence such as to
indicate mistake of the facts or OF
the nature of the evidence on the part
of the trial court rather than that the
opinion was against the weight of the
evidence, and that new trial should BIZ
had unless the plaintiff RENTS $70.2(
and proportionate amount of interest
Exceptions were also taken to the al
lowance of the item of S1S5.96 for team
ing, and to the refusal to allow credi
of S54.70 claimed to have been paid tt
the plaintiffs attorney in Washington
! and to the refusal to allow credit
! amounting to $685. and debts amount
ing to S21.26, dated after the appoint
ment of the receiver. The facts as the,
appear are such that it is difficult if no
impossible to say with much assuranc
of correctness exactly what should o
should not be allowed in respect O
these items and after careful consider
alton we are unable to say from thes
, facts that the trial court erred.
D A new trial should be had on the is
4 sue relating to plaintiffs status upo
] which a new trial has already bee
n ordered on the first bill of exceptions
if the decision upon that issue shall /
t for the receiver the judgment rendere
d for the plaintiff should be vacated; bl
S if for the plaintiff, then a new tri;
s should be had upon all the issues III
j less plaintiff RENTS 5000 and interei
e thereon.
f A. S. Hartwell for plaintiff; L.
It Dickey for garnishee.
d Honolulu, June %. 1896.