Lewers & Cooke, Ltd. v. Wong Wong

Citations

• 24 Haw. 39
• 1917 Haw. LEXIS 16

Syllabus

<p>Appeal and Error — reserved questions — points decided.</p> <p>A decision of the supreme court upon questions reserved by a circuit court which present but one of several points which have been raised by a demurrer to a complaint, the point being overruled, is not a decision that the complaint states a complete cause of action.</p> <p>Trial — pleading—proof—demand—nonsuit.</p> <p>Where a demand is a condition precedent to the maintenance of an action the failure to allege it does not dispense with the necessity of proving it at the trial under an answer raising the general issue, and the failure to make such proof may be taken advantage of by motion for nonsuit though the point was not raised by demurrer.</p> <p>Mechanics’ Liens — demand on owner — waiver.</p> <p>In order to enable a material-man to maintain a proceeding for the enforcement of a lien he is obliged to prove that he made demand upon the owner for the amount claimed after giving notice of the claim of lien and before commencing the proceeding to enforce it. The owner does not waive such demand by failing to demur to the complaint for lack of an allegation of demand, and filing an answer of general denial.</p> <p>Payment — application of payments by the court — open account.</p> <p>An open continuous account is generally regarded as one debt for the unpaid balance, and general credits will ordinarily be applied against the earliest debts, but where a material-man keeps a continuous account with a contractor in which entries are made for material furnished and payments made in connection with certain specified jobs of the contractor a credit entry which designates a particular job is evidence of an intention on the part of the creditor to apply the payment to the bill for material furnished for that job, and though it may fall short of a legal application because the debtor was not notified of it, the court in making the application will follow that intent especially as it appears to be fair and equit