I respectfully dissent.
1. Evidence was introduced by the plaintiff tending to show that she is the owner of the Ford, Federal and Chevrolet trucks which she seeks to replevy, title having been acquired (a) to the Ford truck by bill of sale from the Garden Island Motors, Limited, dated May 12, 1926; (b) to the Federal truck at an auction sale antedating the attachment herein, the purchase *Page 57 price having been paid with money acquired by the plaintiff before she was married; and (c) to the Chevrolet truck by bill of sale executed by W.K. Hussey under date of March 31, 1926. Assuming for the purpose of this opinion that "the Chevrolet truck," as set forth in defendant's brief, "was transferred from husband to wife, evidently through the means of a third party," proof of other essential facts is lacking to support a conclusion that, as to the plaintiff in the attachment suit, the transfer was a nullity or that ownership of the truck was still in the present plaintiff's husband.
The evidence above referred to is unrebutted and there is no evidence sufficient to justify a finding that legal title to the trucks above named or to any one of them is not in the plaintiff. The trial judge has made no direct finding as to ownership of the same, saying only with direct reference to this point, as set forth in the majority opinion, "The plaintiff has failed to satisfy me that she is the true owner of the trucks in question." The two conclusions following the portion of the trial judge's opinion above quoted, are based upon a contrary hypothesis, viz: upon the hypothesis of ownership of the trucks by the plaintiff. These conclusions are dealt with in succeeding paragraphs of this opinion.
2. As set forth more fully in the majority opinion, the trial judge held that "if the ownership of the trucks was and is in the plaintiff, she is, nevertheless, estopped from claiming same." No facts are set forth in the trial judge's opinion upon which the above quoted conclusion of estoppel is based and the transcript fails to disclose facts sufficient to justify that conclusion. As set forth in plaintiff's brief: "there is no evidence of any false representation by plaintiff or any concealment of any material fact; there is no evidence of any *Page 58 knowledge by plaintiff that any one of the trucks claimed was ever registered in any other name than her own; there is no evidence that the creditor in the attachment suit knew that any one of the trucks claimed was ever registered in the name of plaintiff's husband; there is no evidence that the creditor in the attachment suit was without knowledge or the means of knowledge of the real facts as to the ownership of the trucks; there is no evidence that plaintiff ever made any false representation or kept silent as to her ownership of any truck with the intention that the creditor in the attachment suit, or any other creditor, should act on such false representation or silence; there is no evidence that the creditor in the attachment suit relied upon or acted upon any false representation of plaintiff or any silence of plaintiff as to her ownership to his prejudice; there is no evidence that the creditor in the attachment suit was destitute of means of acquiring a knowledge as to plaintiff's title to the trucks."
3. The trial judge further held that the trucks above named "were also subject to attachment and are lawfully held by the defendant in this case by virtue of a writ of attachment issued in a suit against plaintiff's husband under the provisions of Sec. 3003, Revised Laws of Hawaii 1925." It is upon the ground last above named that the majority opinion of this court sustains the judgment of the trial court. The ruling just quoted assumes as a fact the ownership of the trucks by the wife and presupposes a finding that at the time of the attachment the wife was doing business on her separate account, that at said time neither she nor her husband had filed in the office of the treasurer of the Territory a certificate of the kind described in section 3003, R.L. 1925, that she was then doing business or proposing to do business on her separate *Page 59 account and that the three trucks above described were employed in said business.
The acts apparently relied upon to constitute the doing of business by the plaintiff within the purview of section 3003 are, first, the renting of her three trucks to the County of Kauai, as set forth in the majority opinion, and, second, the bidding by the plaintiff upon a contract which, if awarded to her, would require the use of trucks. The transcript shows no evidence of more than one renting of each of the three trucks; and the one renting referred to had terminated more than four weeks prior to the levy of attachment. I cannot concur in the view that one renting of each of three items of personal property constitutes "doing business" within the purview of the act named, either when considered alone or when considered in connection with a subsequent bid upon a contract under conditions shown in the transcript and hereinafter separately dealt with.
The certificate provided in section 3003 requires, among other things, a statement of "the nature of the business and the place where it is, or is proposed to be, carried on." The words which I have italicized, read in connection with the word "business," connote a continuity of action not present in the one letting of each of three articles of personal property. It would be a strained construction of the statute to say that it means that before a married woman may rent any articles of her personal property without incurring the liability of forfeiture therein named she must register with the treasurer a statement of the nature of the proposed act and the place where it is proposed to be carried on. "To do business is to carry on any particular occupation or employment for livelihood or gain, as agriculture, trade, mechanic arts, or profession." 3 Words Phrases 2155, citing George R. Barse Livestock Co. v. *Page 60 Range Valley Cattle Co., 16 Utah 59, 50 P. 630, 632. The phrase under discussion has had frequent interpretation in decisions dealing with foreign corporation laws. Within the meaning of such laws it has been held that the doing of a single act of business in another state does not constitute a "doing of business." 3 Words Phrases 2159, citing, among other cases,Cooper Manufacturing Co. v. Ferguson, 113 U.S. 727. "Doing business means a transaction of business during some continuous period, neither a single nor several transactions being conclusive so as to show a doing of business." 3 Words Phrases 2159, citing Beard v. Union American Publishing Co.,71 Ala. 60, and International Cotton-seed Oil Co. v. Wheelock,124 Ala. 367, 27 So. 517, 518. The phrase has had similar construction in instances where it has occurred in statutes with reference to sole trading: "That the business under such statutes should be pursued as a continuing and substantial employment. And hence the mere renting of a room or two by a married woman in the house in which she lives with her husband is not `carrying on business' within the meaning of such an act." 1 Schouler Domestic Relations, 6th ed., page 334, section 307, citing in footnote 53,Holmes v. Holmes, 40 Conn. 117.
Coming now to the act of the plaintiff in bidding on a contract shortly prior to the date of the attachment: No other act of bidding or of contracting on the part of the wife except as above set forth, appears to be relied upon by defendant. After the date of the attachment the bid was accepted and the contract was awarded to the plaintiff, whereupon the plaintiff registered as a sole trader. At the time of the bidding, however, and at the time of the attachment, the trucks were not employed and had not been employed, so far as the transcript discloses, upon any work connected *Page 61 with said bidding and therefore they did not in any event come within the limited class of personal property of the wife which section 3003 permits to be attached as the property of the husband.
In my opinion, for the reasons above set forth, exception 4 to the above quoted decision and ruling of the trial judge should be sustained.