The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1882-12-20

I IN considering the whole case We fnd no esi-
1 deuce Of fraud or negligence on the part o. the
defendants or anytnins 70 snSr IA ,nfy nv,
/ ceeded to collect, wind up OF secure, As far as
possible with greatest care aud conscientossness.
the outstanding accounts aseertained on August
sist 1873 in order 10 be enabled as soon as posi-
| be- 10 paw Mr.. +. f. his share in the property OF
| the late frn.n
On the contrary we think that those acts which
| the rlsiniif eriticises were done in the utmost
| good faith to aid 10 accomplish speedy settle
Inent in full with the plaintiff.
On looking over all the accounts IL appears to Us
that the items marked of are properly 50 marked;
/ In reserves and that the items left are properly
held not vet fully secured and that the sums col
lecied are comparatively 80 small that the pay
greater than he could have required 10 be made.
and that in justice there is nothing of principal
/ due him.
| The retiring contract provides as quoted above,
that until the whole Of the outstanding debts and
claims are collected or completely secured all
partners interested before Sept LIST ISIS, remain
responsible for the due payment and complete Sc
| curenent Of some pro rata of their shares
Under this clause, il is possible in case OF unex-
pected and disastrous losses that the plaintiff may
\ have to return to the defendants some Of the
moneys he has received upon account;
The question as to whether the plaintiff Is not
entitled 10 the payment Of interest is Of more
/ difficulty. As Is said by the plaintiffs counsel,
/ conditions are annexed TO the specific undertak
/ IriuClTal. Dut none AT AltaCncu the
/ undertaking TO pay interest. The contract says:
\ Interest IN current account shall be rernitted
semi-annuAlly until the account is olosed.n
The interest to be paid Is only six per cent The
interest chargcahle upon the capital by the defend
/ ants is much greater. There is nothing to show
properly to imply we think that this remittance of
nteres; is to depend upon the collection of interest
upon the capital. We think il must be presumed
| periodical rentals Of interest
Upon account designated "a. now standing at
| S2S4, So-sa. which Is an increase the defendants
| say that there was struck out and allowed by them
| TO the debtor nearly the sum of sixteen Thousand
| dollars interest due. to encourage the debtor TO
greater eIertions towards the liquidation of the
| debt.
We think this was properly done bu, the claim
! of the defendants counsel that this sum allowed
should be applied first as against the plaintiff to
his demand for interest," we think was not intended
| hy the contract.
II should be applied to the capital. as being a
part of debt written of like the other case of
| writing of debts referred 10.
The defendants counsel further claims that if
interest were due and were absolutely agreed to be
paid. II might have been recovered at law.
We think this is We think however that
there was good reason for bringing this action
in equity. More than two years had passed since
the ultimate time fixed for the payment of the
plaintiff entire demand, subject TO the condition
above mention. No information as to the dondi.
ton Of the account had been furnished the plant
1850 marked exhibit " j" which was not detailed
account, not intended as such nor ACCOMPLISHMENT
had been given 10 the plaintiff since March LIST,
lSS0, and no interest had been paid since then.
On application TO the defendants by Mr. Jaeger
the authorized agent of the plaintiff for an &C
count il was .refused on the ground that such an
account would divulce the secrets of the firm, and
the agent was informed that there was nothing
due the plaintiff of principal interest. Against
these refnsals the previous denial of defendant.
desired interviews, by the plaintiff in Bremen has
little weight. That denial occurred after the re
fusal Of the defendants to pay any thing on ethel
principal or interest, and we cannot say that il
was not excusable.
We think the defendants ground for refusal tC
account was unienable. The plaintiff then had I
night to an account II the bill was properi,
brought, and there is any thing due the plaintiff
under well established rules of equity he is en-
titled to his decree for it with costs
We therefore think that the plaintiff is entitlel
TO decree that the defendants pay him interes
on his proportion Of capital as shown BY thejas
definite account furnished him on March Ist lSSI
down 10 March LIST, 1882 and since then to Sept
lSs2 on his proportion of capital after deductions
made as shown in exhibits G. J. H. on file.
And the defendants should continue to furnish
semi-Rnnual accounts current to the plaintiff unit
the final settlement between them.
E Preston and F. NJ. Hatch for plaintiff A. S
Hartvell for defendants.
Honolulu Dec. llth 1852.