The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1875-02-10
supreme Court of the Hawaiian
IsIands-Jan. Term. 1875
MARK P ROBINSON "a. ROBERT R HIND.

HARRIS and JuDD, J. J.
In Banco, on defendants exceptions from 0C
tober Term, 1874.
Mr.. Judd delivered the opinion Of the Court
This was an action brought to recover freigh
on defendants goods transported on the plaintiff
schooner from Honolulu to Kohala, Hawaii, an,
delivered to defendant The bill OF exception
claims that the Court enormously charged tn
jury as follows:
First. To the effect that the nonjoinder o
Samuel G. Allen, who was a part owner OF th,
schooner Mary Ellen, on the 9Th day Of April
/ l874,-the date of the memorandum for carriag'
OF certain freight, signed by Walker Allen
did not affect the plaintiff claim for freight trans
ported after the said Allen transferred his inter
est and plaintiff was the sole owner of sait
schooner.
Second. ~Thnt the aforesaid memorandum O
agreement for carriage of freight, did not show
necessarily an entire contract but was several il
its items"
Third, THAT it was for the Jury to say
whether the contract was made with Mark P
Robinson's lplaintffsl agents. as with agents ol
principals, and further that if made with then
as agents solely, no objection could be made tC
the nou-ioinder of Allen except as to the item;
previous to Aliens transfer; whereas the Court
should have instructed the jury that it was fol
them to say whether the contract was made with
Walker & Allen while one Of the firm was part
owner"
The following evidence is certified up: There
was evidence of the plaintiff of an advertised
newspaper notice, that Walker & Allen were
agents of the schooner Mary Ellen, on which the
defendants goods for which the freight is claimed
were shipped to him and from which they were
delivered to him also that sald schooner was
owned by the plaintiff and said Allen in the
shares of two-thirds and one-third until May 5th
last, when the plaintiff became sole owner by bill
of sale that day recorded at the custom house.
That the freight for goods taken on the said
schooner up TO said May 5tb, for the defendant,
was 1915. That T. H. Davies, the defendants s
agent in Honolulu, who shipped or ordered said
goods, was aware that Walker & Allen shipped
or would ship them on the Mary Ellen. That
the defendant after receipt Of said goods ac-
knowledged the bill of freight to be correct and
directed it's settlement by his said agent by GER
tain letters which are on file in the case. That
said bill was charged to the defendant only, on
said Walker g. Aliens book of schooner accounts
which was kept distinct from their other accounts
and that il was the custom to charge freight to
consgnees. That said Davies had private claim
for goods sold to said Walker & Allen, as shown
by his account on file in the case in which it ap.
pears that he took Walker & Aliens promissory
note, dated March 10th, 1874, payable in three
months, on said account and that this note had
never been presented for payment nor had de-
mand been made for payment Of his said account.
There was no evidence that the plaintiff was
indebted to Davies or to the defendant, that
Walker & Allen we're indebted 10 the defendant,
or that the defendant was indebted to Davies"
The Court instructed the jury that " if Davies
contracted with Walker & Allen as agents of the
schooner, he did not contract with them as own
ers and the owner may recover freight, and Da-
vies cannot Offset against the owner his private
account against the agents. That the consignee
and known owner of the goods, if be receive
them, could in that case be made responsible for
the freight. That it was for the jury to answer
AuC AuCchlOu LINUS IL NAlAluH piOAuietN
to pay July 9Th ; if he did, even allowing it was
to pay another mans debt, he is responsible
That Davies, acting as Kinds agent, cannot of
set bis debt against HDds', although if the ac-
count had been rendered July to him, by Wal
ker & Allen, aud balance struck so that it was
settled, it would be otherwise"
The memorandum of agreement for carriage of
the freight referred to above is as follows:
OF FREIGHT ON Mr.. Kinds MACHINERY
/ Steam Engine complete with fly wheel.
2 Steam Boilers-Sl00 each. ...... $500 90
! Steam Chest, Spur Wheels, 2 Pin
ions, Pillow Blocks, Sole Plate, 2
Shafts for gearing. Balf Couplings,
Engine Of Annie Laurie, 3 Packages
Smokestack-bala Of machinery as
speclhed. ....,...,......... 10 %
Any further machinery to be the subject Of spe-
cial agreement. Ordinary freight, iron, sheet |
iron, &c, at IS per ton.
II is understood that oil machinery is to be the |
subject of special agreement.
20 bbls. lime 20 bbls. cemeat-included in the /
above machinery.
1000 fire bricks.
WALKER & ALLEN.
Honolulu, April 9TH, 1874.
BY THE CouRT: 1t is claimed that as Allen |
was part owner 10 the schooner at the time of
signing the memorandum Of contract, the action /
should have been brought in his name. We do |
not think SO. The owners Of vessel being such |
1t the time the freight money is earned, are
entitled to receive it, and they only can recover
t in an action; that is to say, the avais Of the
contract Of afreightment (which becomes CON-
,letely executed when the goods are delivered,)
70 to those who perform the contract, the owners
If the vessel
This is not the case Of ship being bound by
,harter or contnct of affreightment, and during
he voyage 10 performance of the contract is sold;
q which case the vendor would have to bring an
;ction in his own name for breach. Parsons,
dar. Law p. 2l4, For in the case before the
Court the goods for which freight is claimed we're
transported after the sale Of Aliens interest, and
Walker & Aliens contract bound only the owner
Eho was such at the time the goods were trans
,orted-the plaintiff Robinson and the direc.
ion of the Court to the jury was correct, to the
feet that the plaintiff might have his action for