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


whole nett proceeds thereof were to be
RENTED to Shepherd s. Howe But it is
said these goods were shipped to Howe,
to be sold on joint account, as appears by
the invoice, and that the inference is conclu-
slve that Howe was half owner in the goods,
and therefore that the estate is entitled to re-
tain one half of the proceeds. 1t is true, the
words joint account in the invoice furnishes
PresumptIve evidence to that effect, but not
conclusive proof, and the matter is open TO
explanation. The testimony of Mr. Moore
has explained the nature Of the transaction
to my satisfaction, and believing as do, tha;
the goods were the property of Shepherd s
Howe, am of the opinion that this claim
should be allowed. But it is said that if the
claim is allnwed, it should be reduced by the
amount of the freight, duties, landing
charges, and half profits, which were all to
be paid by Shepherd and Howe, while on
the contrary it is contended, that it should
not be thus diminished, inasmuch as Howe
was at the time of receiving them largely
indebted to the claimants for the proceeds of
previous shipments made to him in 1851 |
think the duties, landing expenses and half
profits, should not be deducted from the
amount Of the proceeds, bat should be treat
ed as set off to the large debt due from
Howe at the time Of making these expendi-
lures, and that the freight should be deduct
ed, inasmuch, as it has never been paid by
Howe, and is now owing to Fessenden, and
forms part of his claim against the estate for
the charter of his ship.
The claim next in order, is that Of 1868
rs for cOrdage and spunyarn, sold by Howe
to r. Coady on the 10th of October, 1852,
| and passed to Howe's credit by Coady, who
had an open account with Howe at that time
In striking the balance of that account on
the 18th April, 1853, it is ascertained that
there is a balance in favor of Howe Of SI333
2l, and it is claimed that SS6S rs, Of this
balance, the amount for which the cordage
and spunyarn is credited, should be paid to
Shepherd s. Howe, the owners of the same
But by reference to the account, which COM
menced running on the 9Th of March 1851,
it will be seen that on the 10th of October,
1852, The date at which these articles were
sold to Coady. and passed to Howe's credit
In the account current, that so far from there
being balance due Howe, there was bal
ance against him, of about seven thousand
dollars. Since the sale of cordage and spun
yarn, that balance has been extinguished and
changed to balance in his favor, by heavy
credits for flour, sales of syrup, etc., and on
| no principle of law or equity can any portion
Of this balance be claimed as belonging to
cordage and spunyarn. On the contrary the
balance has been created in part by the funds
of other persons who now appear as credi-
tors against the estate, and in my opinion, it
would be just as reasonable to allow any of
those creditors whose goods or funds enter
into the credits Of this account to cli i'm the
balance of Sl333 81, in part liquidation Of
their debts, as to allow Shepherd & Howe to
do so. If. however, Coady knew at the time
of purchasing these goods that Howe was
the mere agent Of Shepherd s. Howe, and
had no property in the cordage and spun
yarn, then it might be said that he had no
right to pass them to Howe's credit as set
off to his demand due from Howe but should
have passed them to the credit of Shepherd
s. Howe, and the proceeds thereof should be
paid to the real owners. And the same, may
be said of any other credits in that long ac-
count for other goods which COady may have
known to belong to Shepherd s. Howe. But
take it to be admitted Shy the claimants
that Coady acted honestly in the matter, that
he purchased from Howe without any know
ledge of his agency, upon the just belief that
Howe was the real principal and owner of
the goods; and such being the case, Coady
was justified in availing himself of the amount
of such goods as a sett-off in reduction of his
heavy claim, and consequently the proceeds
cannot be recovered of him by Shepherd s.
| Howe.
The next item in the claim is that of Sl27O
| so, for duck, sold to Messrs. Coady & Co.,
on the Both October, 1852, and paid for by
their note at five months, which note is now
| in the hands of the Administrator This
duck is part of the consignment of 4th June,
1852, per the ship Charles, to be sold on joint
account; but feeling satisfied from the evil
dence of Mr.. Moore, that it belonged to
Shepherd s. Howe, | think they are entitled
to whatever may be paid on the note, less
the freight, now due. In cases like this, the
principal may reclaim his property wherever
he can trace it; and 1t is :. wholly immaterial
whether the property be in its original state,
or has been converted into money, or secu-
rites, or negotiable instruments, or other
property, SO only that it is distinguishable and
separable from the other property and assets
of the agent, and has an earmark or other
appropriate identity" Story on agency,
pages 225, ,226. -
We now come to the claim for the ship
ment perthe Equator, which arrived and was
sold by the administrator after Howe's death
amounting to S.. 768 03, in notes. By the
evidence Of Mr.. Moore, Howe had no property
in these goods, and am of the opinion that
the proceeds do not belong to the estate, and
should be paid to Shepherd & Howe, less
freight, duties and other charges, which have
been paid by Mr.. Parke, not out of the as
sets of the estate, but out of his own private
funds But it is said that the estate is enti-
tied to half of the profits arising from the
sale of this consignment; for by the agree