Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1853-05-14
AWARD.

| AWARD.
| WHEREAS, a claim was made OH the 9th
day of April, 1853, by Messrs Shepherd and
Howe of New York, against w. G. Parke,
Esq, administrator of the estate Of A. B.
Howe deceased, Of Honolulu, for the pro-
ceeds Of certain goods in the hands of the
said w. G. Parke, as administrator, amount
ing TO ST., ,453 Al, claimed by the said Shep-
herd and Howe to belong exclusively to them !;
And whereas said claim is disputed by the
said w. G. Parke and he creditors of A. B.
Howe, who claim that the proceeds of the
goods belong to the estate of A. B. Howe,
and should be distributed among all the Gre
ditors pro rata; And whereas all the matters
in dispute were referred to me by all the par
ties an the llth day of April, 1853, for final
decision and settlement:
| Now KNOW ALL MEN BY THESE PRESENTS,
that |, the said referee, having been attend
ed by the counsel of all parties, and having
heard and duly considered the allegations, pa
pers and proofs which they have respectively
laid before me in the premises, do hereby
make this my award in writing of and con-
cerning the matters to me referred as afore-
said, that is to say:
| lst 1t is my decision that the clam for
lumber, bricks and cement, bought of Messrs.
Butler, Keith and Hill of Boston, amounting
to S., 2S7 50 ought not to be allowed, but
should be divided among all the creditors of
the estate in proportion to their several
claims. These goods were brought by A.
| b. Howe in his own name, to fulfil con-
tract made by the said Howe with T. Metcalf
ON the I'd day of February, 1852, they were
shipped by the said Howe and consigned TO
said Metcalf at Honolulu, and they were paid
| for by the said Howe, by draft on the
claimants, Shepherd s Howe of New York,
at eight months, for the acceptance of which
draft, Shepherd s Howe were to be paid one
half of the profits realized on said goods in
Honolulu. 1t is evident to my mind from the
whole transaction, that A B. Howe was the
| legal owner of those goods; that for the
benefit he received from Shepherd s. Howe
by their acceptance of his draft at eight
months, he was to pay them one half of the
profits; and that it was his intention to remit
them the funds to meet this draft at its matu-
rity. This he was prevented from doing by
his unfortunate decease, and the claimants
cannot on that account come in and Justly
claim the whole proceeds of those goods to
satisfied with their pro rata share of the
same.
1t is said, however, that A. B. Howe was
the mere agent of Shepherd & Howe in this
transactions; that he purchased the goods for
them, and therefore they are entitled to the
full proceeds thereof. This does not clearly
appear; but even granting for the sake of the
argument, that he was the agent of Shepherd
& Howe, will that fact materially alter the
position of affairs, when viewed under all the
other circumstances of the case. The agen-
cy of Howe, if it existed at all, was a secret
agency known only to him and his principals,
and one which he never disclosed to those
with whom he dealt Shepherd s. Howe al
lowed him to buy the goods in his own name,
to contract in his own name with Fessenden
the ship owner, for the carriage Of those
goods to Honolulu, and by their actions or
silence, it matters not which, it is evident that
Butler, Keith and Hill, as we'll as Fessenden
were induced and authorized to believe that
he was the real principal, and owner of the
goods, and, acting upon such faith, the for
mer might have been led to give him credit
for another bill of goods, and the latter to
trust him for the charter of his ship. Is it
reasonable to suppose that they would have
given Howe, a stranger in Boston, these Gre
dts if they had had the faintest suspicion
that he was mere agent in these transac-
tons, having no property in the goods' If
not, and they were induced by the silence Of
Shepherd s. Howe, who were fully cognizant
of all these transactions, to believe him the
owner of these goods, and deal with him as
such, would it be just or reasonable, for the
claimants, at this late day, to step in and ex-
clude the carrier Of those goods and other
creditors, from pro rata dividend in the pro-
ceeds? think not
1t follows from what has been said above,
that the claim for so M-shingles, the so casks
nails, and the 50 bbls cement, bought of
Butler, Keith s. Hill, and included in the
same bill with the goods consigned to Met
calf cannot be allowed.
| The next claim is for the proceeds of the
so blsof tar, and the l3 cases Of spirits Of tur-
pentine, shipped on the 4th of June, 1852,
per the Charles" and consigned to A. b..
Howe, for sale on joint account of A. b.
Howe and Shepherd s. Howe, amounting to
the sum of $3.50 35. 1t appears from the
evidence of Mr. Moore, the book-keeper of
Shepherd s Howe, that these goods belong
ed entirely TO Shepherd s Howe, and were
shipped TO A. B. Howe for sale, on an agree
merit between the parties, that A. B. Howe
was in no event 10 be liable for any loss on