CAREY v. HILO FIN. THRIFT CO., LTD., 39 Haw. 473 (1952)

GEORGE B. CAREY v. HILO FINANCE THRIFT CO., LTD.

NO. 2798.Supreme Court of Hawaii.Filed February 6, 1952.
Decided July 3, 1952.

PETITION FOR REHEARING.

LE BARON, J., AND CIRCUIT JUDGES BUCK AND BROWN IN PLACE OF TOWSE, C.J., AND STAINBACK, J., DISQUALIFIED.

Per Curiam.

This is a petition for a rehearing of the cause decided by this court in its opinion recorded on page 210, ante. The petition apparently rests on the proposition that the petitioner’s bill in equity alleges a valid equitable defense of executory accord or agreement and on the ground that this court committed an alleged error in not holding such defense to be cognizable only in equity. The petition, however, cites no authority in this jurisdiction to support that ground and no authorities in this or other jurisdictions to show that the instant case is a proper one in which equity will enforce an accord or agreement of the character described by the allegations of the bill, even if the defense thereof were not available at law. Nor has this court found any which do. On the contrary, in this jurisdiction equitable defenses as such are unquestionably available at law and permitted by statute. (Kamohai (k.) v. Kahale (w.), 3 Haw. 530; Joseph Morris v. P. Petero, 4 Haw. 23; Ah Hoy v Raymond, 19 Haw. 568; R.L.H. 1945, § 10077.) Assuming but not deciding, therefore, that the allegations of the bill sufficiently state a valid equitable defense of executory accord or agreement and that the undisputed evidence adduced at the hearing on the order to show cause does not show that such defense is barred by

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the doctrine of res judicata or by that of estoppel by judgment, that particular defense would be available and effective in the pending action at law between the same parties and involving the same issues to the same extent as it would be in equity. It follows therefrom that the allegations with respect to such equitable defense, even in the absence of such undisputed evidence, do not suffice as an equitable ground for restraining proceedings in the pending action at law or for transferring the cause thereof from law to equity.

Petition denied without argument.

B. Houston for petition.