Appeal from Third Circuit Court; Honorable Nelson K. Doi, Judge.
Richardson, C.J., Kobayashi, Ogata, Menor and Kidwell, JJ. Opinion of the Court by Richardson, C.J.
[57 Haw Page 124] This appeal arises from a contract action brought by plaintiff-appellant Ben Lee Wilson (hereinafter, Wilson) against defendant-appellees Kealakekua Ranch, Ltd. and Gentry Hawaii (hereinafter, Gentry) for architectural and engineering services rendered from February, 1972 through
May, 1972 for the Kealakekua Ranch Center Project. Wilson claims that $33,994.36 is due him for services provided. Jury-waived trial commenced on June 13, 1973.
On direct examination, Wilson testified that he was licensed to practice architecture in this State. On cross-examination, however, after challenge by opposing counsel, Wilson admitted that he was not a registered architect at the time he rendered architectural services for Gentry, as his license had lapsed on April 30, 1971 for failure to pay the renewal fee for the succeeding period.
After Wilson rested, Gentry, citing HRS § 464-2, 464-9, 464-11, and 464-14, moved to dismiss the complaint on the ground of illegality in that Wilson was not a duly licensed architect at the time he rendered services for Gentry. Plaintiff argues that the affirmative defense of illegality was not available to Gentry since its failure to plead illegality in its answer effected a waiver of that defense.
The trial judge granted the motion to dismiss, having concluded that the contract between Wilson and Gentry was null and void because of Wilson's noncompliance with HRS § 464-2.*fn1
On appeal, Wilson contends that the trial judge erred by (1) considering the affirmative defense of illegality and (2) concluding that the contract was null and void because of Wilson's noncompliance with HRS § 464-2.
The defendant did not plead illegality as an affirmative defense in its answer but raised it at trial on a motion to dismiss after the plaintiff had presented and closed his case. Wilson argues that the failure to plead the defense effected a waiver. H.R.C.P. Rule 8(c) provides that in "pleading to a preceding pleading, a party shall set forth affirmatively . . . illegality . . . and any other matter constituting an avoidance
or affirmative defense." Rule 15(b), H.R.C.P., states, however, that:
"When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. . . ."
In Godoy v. Hawaii County, 44 Haw. 312, 321-2, 354 P.2d 78 (1960), this court said that:
"The effect of this provision [Rule 15(b)] is stated in Moore, Federal Practice, 2d Ed. Vol. 2, p. 1696 note 30, as follows: 'Failure to plead an affirmative defense is immaterial if evidence of the defense is introduced and not objected to for failure to plead it, and no surprise is claimed. The statement is, as a general proposition, borne out by the authorities." (Citations omitted).
Professors Wright and Miller concur, stating, "if evidence relating to an unpleaded affirmative defense is introduced without objection, Rule 15(b) requires the issue to be treated as if it actually had been raised by the pleading." 6 Wright ...