I concur in the conclusion that the exceptions should be overruled but I prefer to consider the issues raised by the bill of exceptions and argued by counsel. In other words, to consider the case on the issues raised in the trial court and there decided.
The facts necessary for this opinion are contained in the opinion of Mr. Justice Le Baron.
The defendant having testified "I did not fire Mr. Berkson, he quit," the court rejected evidence of defective photography by plaintiff, proffered by the defendant. Unless this evidence was offered to justify the discharge of plaintiff it was not material to any issue in the case. If proof of one of these defenses would necessarily disprove the other the court correctly ruled out the evidence of the second defense. As I understand the argument of counsel for the defendant, he admits as much, and I agree, notwithstanding the provisions of sections 10076 and 10077, Revised Laws of Hawaii 1945, which provide in effect that under a general denial the defendant may give in evidence as a defense to any civil action any matter of law or fact whatever.
Proof that the defendant discharged the plaintiff for cause would certainly disprove the contention that he was not discharged but voluntarily quit. There is therefore no necessity for assuming error in the rejection of said evidence and relying on the court's instruction, to which no exception was saved to overcome the assumed error. *Page 443