Opinion
No. 1632.
Submitted March 5, 1926.
Decided March 20, 1926.
ERROR TO CIRCUIT COURT FIFTH CIRCUIT. HON.W.C. ACHI, JR., JUDGE.
PERRY, C.J., LINDSAY AND BANKS, JJ.
L.A. Dickey for plaintiff in error.
No appearance of or for defendants in error.
This case comes up on a writ of error. The plaintiff sued the defendants in the sum of $262.15 for rent and money loaned. On the trial in the court below, jury waived, plaintiff introduced evidence which clearly made out a prima facie case against the defendants. The plaintiff testified on his own behalf and also introduced as a witness Y.C. Ching, one of the defendants. The testimony of both these witnesses was to the effect that the defendants had borrowed sums of money from the plaintiff which they had not repaid and that they were also indebted to the plaintiff for the use and occupation of his premises at an agreed rental. Upon this testimony the plaintiff rested. Thereupon and without offering any evidence the defendants moved for a nonsuit against the plaintiff. The motion was allowed and the plaintiff excepted. The question presented by the record is whether under the evidence plaintiff should have been nonsuited. In the case of Schoening Co. v. Miner, 22 Haw. 196, 203, the court said: "A motion for a nonsuit should be denied where suit is brought upon account and there is more than a scintilla of evidence to prove some of the items to which no valid objection has been made." As in the case at bar this was a trial by the court without jury. See also McCully v. Stanley, 3 Haw. 147; Hale v. Maikai, 12 Haw. 178 and Leialoha v. Wolters, 21 Haw. 304.
We think the motion for a nonsuit should not have been allowed. The judgment of the lower court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.