The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1870-02-02


pion VS.. Bostwick ls Wend, IT5; Burckle VS..
Eckbart, CONS, 1872; Conklin vs. Barton 43
Bar. 49s; Gratz vs.. Bayard II S. & R., Al.
Examination of the authorities cited and of
the cases referred to by them, will show that a
partnership can not be inferred merely from a
common interest" from sharing in profits,
from the right to account, nor from direct con-
troll over the business. How. in fact, can an
agent prove disputed claim for agreed profits,
unless he can have an account? (Grays Notes
on Story's Part. p s9.) All these relations be-
tween parties are not inconsistent with those of
principal and agent and therefore, insufficient
Of themselves to establish partnership a rriori,
hut in order to decide the matter we must look
| TO the agreed intention Of the parties as shown
by their words and acts prior to any dispute
arising The legal consequences ofa partnership
exist without agreement. and often contrary to-
the expectation of parties. but it is illogical to
assume the consequences and thence infer the
cause.
Did the parties in this case intend to act to-
gether as principals in a common business? We
think such was their intention. 1t was agreed
that the plantation should pay for losses by injury
to animals this means that the partnership pays
for them. The plantation, with all its improve
ments. as agreed, shall revert to said T. Met
calf or his heir This indicates that during the
term of the partnership, the use of the land is in
the partners alone. We also have the incidents
of community of Interest, division of profits,
control of the plantation by Tucker and Wal
Ter, ard Of mutual and common accounts. which
tend to confirm the conclusion that partnership
was meant.
What are the incidents of this partnership,
and what are the mutual rights, duties and obi
cations of the partners? First, the partnership
itself was dissolved at Metcalf s death. The
agreement for the term of ten years was not
binding upon the heirs and creditors of Metcalf,
because there was no stipulation to that effect,
and such express stipulation is always necessary,
in articles of co-partnershi) for term of years,
in order to prevent dissolution at the death Of
either partner Sometimes u direction in the
will of the deceased partner is regarded as an
expression of his assent to such an agreement,
leaving it optional with the surviving partners to
continue the business with the representatives or
devisees of the testator; but in this case, the
directions in Metcalfis will can have no such in-
tent, in view of his previous declarations appear
ing in his letters which are in evidence, that
be never regarded the eomplainunts as partners
The Roman law prohibited the continuance Of
partnership. even by previous agreement, after
the death Of any partner. The English law never
went to that length but has always allowed the
continuance of the partnership but only by ex-
press stipulation. Burwell VS.. Mandeville's Ex
H.. 573; Scholefed VS.. Echburger, Z. p, 594;
Storys Part, q "a, s., 1876. The accounts of the
partnership must be made up to the time of its
dissolution, allowing time TO wind up the concern.
This view affects the mutual rights and duties of
the executors and compainants nasmuch as they
are to be regarded, not as partners, but as trus-
lees for each other. Storys Part, sl3O.
The terms of the partnership are clear: The com
rainants are "to take charge and carry on" Met
calf to furnish land, with the Improvements and an
nlals then upon the land, and all capital or means
required for the sufficient conduct Of the panta-
ion" the partnership paying for losses by injury TO
animals, the cost of their keeping, and interest
the money furnished the plania ion and improve
ments to revert to Metcalf his heirs at the ex-
piraton of tue partnership.
To open partnership account after the death of
one of the partners, requires clear of fraud or
gross error, and allowances are not usually made
for any contribution to the common stock Foster
vs. HOdgson, 10 Yes, 1S0 Dexter VS.. Arnold
Mason, 2S4; Winsor vs. Savage, Metcaf 347;
Story's Part. 1873, note 3, 233, note f. and s349
In regard to the claim Of 81 0s9, claimed by the
compainants for their implements, for the payment
Of which by note they show Metcalf's receipt, ii
appears that Mctcslf agreed to furnish the imple-
ments then on the place. and that the cOmplaiBants
not having agreed to do, furnished those men
TONED in Schedule C. The complainants can re-
cover at law any implements belonging to them
which they can identify, but If they have volun.
teered the use of Them, without any agreement that
they should be paid for their use. they car not at
this late day, have the accounts opened, and a claim
allowed which they failed to make seasonaby during
Metcalf's life.
There is no evidence that Metcalf charged for the
animals on the place which he agreed to furnish
There is evidence that the compainans furnished
money TO carry on the plantation, or that Metealt
failed to furnish capital agreed. 1t was not in
tended that the compainants should share in the
gross profits, but only in the net profits. If the
profits were wholly or in part devoted to carrying
on and enIarging the business, it was done by mu-
ual assent, and If no gain resulted therefrom, no
one can be blamed, unless ior violation OF good
faith, or by failure to exercise the diligence and
prudence that a reasonable man could require. The
compainants made objections, called for no d.
vision Of profits, but continued in the business as it
carried on, partly with money furnished BY
Mctcalf, and partly with the proceeds Of sugar, in
the net profits of which they were interested. If
the result unsatisfactory, it is late to claim
reimbursement for their ventures, and too late TO
compel. on the part Of their deceased partner,
specific performances OF any part Of the agreement
which, in good faith and exercising reasonable care
he failed TO perform.
By the law of Partnership neither party Is entitled
to payment for personal services, unless by express
agreement This disposes Of the mutual claims for
services in this The partners are presumed to
have worked for their own as well as the common
interest and not at the expense of the firm. Frank
lin VS.. Robinson. Johns, Oh. 15s; story's Part,
slss; Caldwell vs.. Liebcr, Z Psige, 4sS; Bradford
vs.. Kimberly 8 Johns, Ch. 49,
No allowance can be made for the Hema'' lot
bought by MetcaIf at his own instance nor for his
payments Of Wyllie's note Of $1,000, or Bates's
counsel fees of S22Z25, and insurance premiums
The parties had not so agreed See shattuck vs.