The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-06-21


MAY TERM, 1901
ISAAC ERICKSON .. THE VOLCANO STABLES AND
TRANSPORTATION COMPANY, LIMITED.
EXCEPTIONS FROM CrRoUrr COURT FOURTH CRourr
suBnrrrED MARCH 10, 1901. DECIDED JUNE Is, 1901
FREAR, CD. GALBRAITH AM PERRY, u.
contract debt due defendant arising OF
transaction independent be plead and esa
lished as a set-on plaintiffs demand.
In an action assumpt claim for
nqidated damages growing out of negligent or wful failure "
perform properly plead seton or
only be recognized and allowed
when presented by of recoupment
OPINION OF THE COURT GAIBRA1TH.
This is ain action in assumpsit for $3796 balance due
written contract for construction certain buildings The
answer of defendant o. the general issue % plea of
seo alleged debt growing out Of the same trans
action @ plea of seo for unquidated damages
ing out of breach sued jury waived and
The the and verdict rendered in favor OF
the plaintiff the claimed and costs The defendant
comes to this exceptions
The first exception the ruling of the court sustaining
objection testimony relative to the method Of bookkeeping
and correctness Of the defendants books.
The authorizing bill of exceptions poyides>that
when any question of law shall arise any trial and it is
wished present the to the Supreme Court for decision
by exceptions that the cause of much thereof be
necessary full understanding of the question: shall be
ported Sec 1885, Civil Laws 1890 From the meagre pre-
senaon this exception does appear that the questions
material the and
bound presume that the Circuit Judge ruled correctly
Exception the ruling of the in excud
ing proof of debt due the defendant from the plaintiff Bal
due book account independent and distinct trans
action from that sued that the ground which
this testimony excluded that this alleged debt
growing independent transaconone in way
nected with the in suit The of this Territory
seto reads ct shall be competent the defendant any
OWL action plead offset of like kind and denomination,
existing In the right between him and the plaintiff
Civil Laws 1897, Sec 1861 The Supreme Court of Connec
cut said GA seo is made where the defendant has debt
against the plaintiff arising of transaction independent Of
the contract which the plaintiff sues" Auery Broom, 81
Conn 4O1: This definition of seto is adopted by Water
in his book See Waterman set-of p. g. and is
generally recognized being concise and complete Encyc L.
Vol. 81 p. 211 and note
The very idea of seoff that it debt growing of
separate transaction from that sued The claims
parts of mutual account the balance only of which
due" Magoon Marks, II Haw 1866 The claims be
of ke kind and denomnaton necessarily growing
the TRANSACTION and must 3ist in the right This
book account within the statutory definition of
setof and plead the defendants proof of
should have been admitted
The bill of exceptions fails disclose that any exceptions
taken and allowed the rulings complained excep
tons and and these be considered.
Exception the ruling excluding testimony offered to
uniquidaed damages growing of negligent will
full failure to properly perform the contracin suit The
of La Motto ct al Angel Haw 237 and many cases from
other jurisdictions cited in support Of this exception.
from examination of the authorities cited at the
argument and in the brief that has failed to keep in
mind the well defined distinction