Boyd v. Kaikainahaole

OPINION OF THE COURT BY

Tbis is an action for $107.45, tbe balance alleged to be dne plaintiff from defendant for services rendered in superintending tbe erection of certain buildings, transferring a mortgage, drawing a will, and paying bills. Tbe plaintiff recovered judgment for $95.00 besides interest and costs in tbe District Court of Honolulu and on defendant’s appeal to tbe Circuit Court obtained a verdict • there for tbe same amount. At tbe trial tbe plaintiff admitted on cross-examination tbat be bad received from tbe contractors, a Chinese company, $100.00 as a consideration for securing for them tbe contract for tbe erection of tbe buildings. Defendant’s counsel thereupon moved tbe presiding judge to' allow tbis $100.00 as a set-off and to instruct tbe jury to find for the defendant. This tbe judge refused to do, on tbe ground tbat tbe set-off was not pleaded, and tbe case comes here on an exception to tbis refusal. Counsel did not amend bis answer by adding a plea of set-off, although, as we understand, tbe judge intimated tbat be might do so.

A claim of set-off should be specially pleaded; if not pleaded or submitted to tbe jury it is not res adjudicada and may. be made tbe subject of a separate action. Lopez v. McChesney, *457ante, p. 225. We are informed by defendant’s counsel tbat a separate action bas already been brought upon tbe claim in question and tbat be merely desires assurance tbat tbe claim is not res adjudícala.

Exceptions overruled.