The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1874-10-28
This is a submission under the provisions OF the
Civil Code The facts in this case are substantially

-
Civil Code. The hcis in this case are substantially
/ as follows 3. i - $3.50 4s sass
On the 25th September, 1869, a co-partnership
was formed by John o. Dominis, acting for His
! Majesty Kamebameha v Ferdinand W. Hutchi-
son, James Makee and 2. s. Spaiding, under the
firm name of the West Maui Sugar Association, for
the manufacture of Sugar at Lahaina, with paid up
capital of $40 000 in equal shares 1000 said
partnership to expire by limitation July l, 1873.
That said business wss thus carried on until the
first day OF March 1872, when James Makee, by
deed of that date In consideration SIS 0O0 con-
veyed to ParkerN. Makee all the one quarter inter
est Of the said James Makee 10 all the property
owned by him in the West Maui Sugar Association,
and also his quarter interest n the capital stock
and effects thereof That at that date the cospartner
ship was indebted to c. Brewer & Co., SSl, o770S
aud Interest and the value OF sugar in their hands
estimated at Sc, 4254 40 That about the same time
His Majesty Kamehameha Y. purchased the one
quarter share Of q s. Spalding in the said co-psrt
nership property, stock aud effects. That the bust
continued TO be carried on under the articles
Aforesaid except that His Majesty Kamehameha ".
was entitled to bali share in the eo-partnersbip
until the 9th September, 1872, when new articles of
partnership were entered into between John
o. Dominis, acting for bis Majesty, and f. W.
Hutchson aud the said Parker N Makee, whereby
they associated themselves together under the
firm name and for the same business objects. That
the capital stock, all paid up, was $4,000 in four
equal shares OF $4,000 each. His Majesty holding
two shares and F. W. Hutchinson aud Parker n
Makee one share each.
That the property of the co.partnershp embraced
all the real estate in fee and all the leasehold
in Lahaina, with buildings Improvements ana crops
thereon, including all the property that formerly
belonged to or was possessed by the West Maui Su.
gar Association or their agents. said coparlnership
to continue for five years. unless sooner dissolved
by mutual consent. That said Parker N. Mukee
was appointed managing agent at Lahaina, and con-
tinued to act such up and until the sale Of the
whole CO partnership property the 9th July, 1874
That on the S0th June, 1878, Parker n. Makee and
wife executed mortgage of all his undivided one
quarter interest share in said association and the
capital stock and effects thereof unto James Makee
and Emily E. NJ. Peck, administrators of Sherman
Peck, deceased, to secure the payment of two prom
ssory notes dated the 9Th day of February, 1872, |
made by ?. N. Makee in favor OF James Makee, and /
by him endorsed TO the administrators Aforesaid
one note for 81 900, payable in two years from date
With interest at per cent, payable sem-annualy,
aud the other for 81 500 payable in three years from
date, with interest at rate aud payable same
manner. That at the date of the said mortgage the
CO. partnership was indebted to C. Brewer & Co. in
the of S47 544 &c. with an arrea of interest," aud
the value of sugar hand was estimated at $780,
440. A. That the said administrators did not give l
the members of the co-partnership notice of the
said mortgage and in point Of fact they had no no.
tice. That His Majesty Kamehameha V. died on
the llth of December, 1872, and administration was
granted TO Jno. o. Domins and Chss R. Bishop,
who, with the of the heir and the surviving
partners, continued TO carry on the business, and
nothing was done either by the co-paaners or the
aforesaid to dissolve or settle the CO.
That on the 9th day Of July, 1874, the members of
he West Maui Sugar Association sold all their part.
lership property to Messrs Campbell & Turton of
ahaiua for SSS OOO and thus put an end to the CO.
That at the time of the sale the CO.
was Indebted to c. Brewer q Co. in the
um oil SIS, 964 "A exclusive of sugar on hand and
broad, estimated at S2S,95O, or Whereabouts, and
hey are the principal creditors of the firm
The plaintiffs claim that they entitled by virtue
f said mortgage TO priority in the partnership as
els, and that they entitled to be paid in full
While the defendants insist that the assets should be
rs: applied TO the payment of the debts and liabii-
les of the partnership. and That the plaintiffs can
My claim the said quarter share of said Parker N
lake. in the surplus (f any of such assets.
1t appears by the submission that the whole pro.
erty was purchased by the partnership funds; that
ne business of the association was not disturbed by
ny changes which were made in the firm so that
hen James Makee sold bis interest to Parker n
lake., the former retired and the latter became
ember ofthe firm, aud the business was conducted
before, there being no settlement of the affairs
the firm at that time.
1t is settled principal Of law that partnership =
roperty belongs 10 the partnership, and one part
ar has no interest init except his share of what :
mains, after all the partnership debts are paid;
;nce creditor of one of the partners can not
aim any interest but what belongs to the debtor.
I'd that is in the surplus after the debts OF the part
.rship paid. "Unti the affairs of the co.part.
'rship are wound up and settled, the claim of a :.
riner is, strictly speaking, merely equitable for :,
It'll then, no action in general be maintained
law, by one partner against the other, for por- :
IN of the profit to enforce contribution to pay =
= loss" Pierce vs.. jackson, Mass 24S Note !, /.
d authorities there cited. "
Chief Justice Shaw in the case OF Dyer vs. Clark N
ministrator, aud others, Met. 562 declares in q
distance, "hat real estate purchased by partners ~
It OF partnership funds to be used and applied to 10
ruership purposes, and considered and treated by
e partners part OF the partnership stock, is 10
deemed, so far the legal title is concerned. as as
ate held in common, and not IN joint tenancy; co
as to the beneficial interest it is considered Il. Pr
tity affected with trust for the partnership co
til the accounts are settled and the debts of the
m paid" F rag
1t is correctly stated by the counsel for the plain tn
Is that partnership is necessarily dissolved by to
Grafton of law, the death or retirement of a %
,mber. When Jas. Makee sold on the first day Of pa
Irch, 1872 to Parker N Makee, he became part r
'ner and manager and virtually member Of the co
n, although the articles of partnership were not an
.euted TIL Sept 9th thereafter, and there was due FOL
IN the old firm at that time on the LIST of March, ioi
2, succeeding the 5h Of February when the sale 'n'
made, balance to c. Brewer Co. Of s24 65I g. me
Which James Makee was liable for bis propor "s
.; bntit woald -ppear that the business went on
before as II no change 10 the partnership had been MT
de, that is there was no winding up Of the bust pf'
s, that the SOth OF June, 1878, there was lof
ance due of sI7, lO4 49, and on July 6, 1874 at Blu
time of the sale Of the entire property Of The Pa
ociation, there was balance due Of $24. Sl444,
a