The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1877-02-03

any time IN vacation or In term time when they may
so direct, and their decision thereon is to be final to
determine the rights of the said parties in the
premises.
ALFRED s. HARrwELL. attorney for plaintiff.
EDWARD PRESTON,
WIN. FL. HALsTEAD.
Attorneys for defendant.
Lahaina, Island of Maui, Dec. 9th 1876.
1 hereby certify that the foregoing is a true copy
of the original agreement filed in the clerks office OF
the second Judicial Circuit Court in the within
mentioned cause. HENRY DICKINSON, il.
Clerk Circuit Court, I'd Judicial Circuit.
Lahaina, Dec. 18th 1876.
The ovners of The Waihee Plantation Us. KaIapu.
ALLEN, Gu. j.. HARRIS AND JUDD, j.. j.
This is q statutory action to enforce a contract for
service. brought up by appeal from the district
court of Wailuku to the circuit court of the second
judicial circuit ; the jury waived, and the case
transferred by consent, to the Supreme Court in
Banco.
that this contract was made on the 10Th of January
1876, by which the Defendant agrees to work for
the term Of thirty-four months for the Owners of
the Waihee Plantation , then being Messrs. Charles
C.. Harris and Hermann A. Widemann that on
the 18th day of August A. d. 1876, Mr. Harris sold
his interest to Mr. Widemann, who then became the
owner of the entire plantation. This was a dissolu-
ton of the partnership. l Parsons Contract, page
$50.
Section 1924 of the Civil Code enacts "That
where the servant is bound by any company of
individuals, the death of any one partner or the
change of partners in each company, shall not
G ps cont rS tehsass sic" ." nc q" II
This we take to mean that whatever changes may
take place in the original firm employing the lsborer,
the contract continues to be binding so long as one
of the original members remains in the firm, to
whom the laborer can look for the payment of his
wages, for directions as to his labor, and for humane
treatment, all of which were the considerations,
which induced him to enter into the contract,
The term "The owners of the Waihee Planta-
ton - in this contract is no more than the title, by
which this co-partnership was known /; that is, it is
the frm-name under which this enterprise was con-
Quoted. It cannot be claimed that the Defendant by
the form of his agreement, contracted to work for
whomsoever might become the owners of the Waihee
Plantation, for then there would be no individuals
ascertained to whom the service was owing, or in
case of a change of ownership, these individuals
would be ascertained independently of the servants
will.
On the Goth Of September 1876, Mr.. Widemann
sold the Wsihee Sugar Plantation to James Makee
and John D. Spreckles, but reserved a certain share
in the proceeds of the plantation as stated in an
indenture cotemporaneously executed. By this
indenture the purchasers of the plantation agree
that Mr.. Widemsnn shall receive during the term of
two years, three fourths of all the gross proceeds of
the crops on the Waihee Plantation, in consideration
of a reduction made by him in the agreed price of
the plantation, and in the further consideration that
Mr.. Widemann. employ and retain the laborers then
employed on the plantation under labor contracts,
and Mr.. Widemann at the same time gave Mr..
Makee q ROVER u attOTuey u nlaudRe Ia LdOOE III
his name.
Story defines q co-partnership to be- q voluntary
contract between two or more competent persons to
place their money, effects labor and skill, or some or
all of them, in lawful commerce or business, with
the understanding that there shall be a communion
of profits between them"
Lindley on co-partnership, section II, says g An
agreement to share profits and losses. may be said to
be the type of q partnership contract - and again,
IS Although it has already been pointed out, that to
share profits ia prima facie an agreement for a CO.
partnership, yet it is conceived rightly that q part
nership. is not the result of an agreement to share
gross returns.'' 1 Lindley on Partnership II.
Tested by this definition Mr.. Widemann is not a
partner, for he does not share in either the profits or
the losses of the plantation, but in its gross proceeds.
This indenture contains q condition that the
percentage to be paid Mr.. Widemsnn shall cease
upon any sale of the plantation. This would mill
tate against the idea that the payment of the per-
centage was upon any valid consideration except the
one last stated j.. e. the employment Of the laborers
by Mr.. Widemann under their contracts, and by
itself, would be nothing more than the agreement
between Widemann on the one part and Makee and
S~preckles on the other part, by which Widemann in
consideration of this percentage was to retain and
employ the contracted laborers on the plantation of
Makee and Spreckles.
Now the Plaintiff can only have the right to
enforce the personal services of the Defendant by
virtue of the Master and Servant Act, subject to
provisions of which this contract was made.
When Mr. Harris left the partnership Mr.. Wide
mann being the remaining partner had the right to
COUJpSl II Y VIC Va IA ASePOAOSdt ~ JIG 4 - |
section of the Civil Code which controls the whole
matter. And if he has taken Messrs Makee and
Spreckles into partnership then the partnership thus
formed would have q right to compel the service
so that the question rises whether this is a change in
the partnership, which is provided for by the law, or
q mere attempt to assign the contract, which in
itself, is unassignable.
Now it is clear that Widemann had conveyed the
absolute interest in the Estate, and had nothing
more to convey he would have to pay no share Of
its losses. and he would enjoy no share of its
profits. The clear averment is that he would have
three quarters of one per cent of its gross proceeds,
not Of its net proceeds as part payment of the price
for which he sold. thus averring q sale of the whole
He has no voice in the management of the
CT even in its sale, if Aessrs Makee and
Spreckles shall see fit to sell it. He is in no respect
an owner of this plantation in which title this action
is brought. Messrs S~preckles and Makee are the
sole owners of that plantation and they are not the
owners with which this man contracted.
Judgment for Defendant.
ELISHA Fl. ALLEN.
..a. CHAs. c. HARRIS.
A. FRANCIS JUDD.
low 4 g HAaPwEII- for Plaintiffs