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

The Court in effect confirms the Judgment given
In the first instance, except in the matter Of the
paymen; of interest, and thereupon ordering an
account TO be taken to ascertain what amount OF
interest may he due.
The clauses in the retiring agreement regulating
the payment of interest, are in these words -
Until the complete winding up or securemeni
of claims of whatever kind they may be there will
September 1st, ISIS, and SIX per cent. interest
shall be credited TO him up 10 the settlement of the
above mentioned claims Until the
closing of this account (of the assets the interest
shall be RENTED semi annually to E Fursienau
10 Bremen
The precise intention of the parties in thess
clauses of their contract must be ascertained by
examination not only of the words before us but
of the context of the whole instrument. We have
seen that this was in brief, TO this effect, viz
statement of the debts then due the firm. that Z
Fursienau owned one-si1th of them, that the re
naming partners would with discretion anC
diligence collect the amounts as far they could
and would remit TO Z. Furstenau his share of what
they actually collected, be to suffer his share o.
the loss of such accounts as were lost. II wa.
supposed there would be losses, but the owners o.
the ive-sixths did not make themselves RESPONSE
BILE for any loss, to the owner of the one-sixth
These amounts were chargeable with inieres. ant
the interest from Sept lst, ISIS vas kept separate
and one-siIth part was TO be credited to Z Furs
tenau up 70 the settlement Of the above mentioneS
claims
Now settlement of the claims may be by
total loss partial realization and quittance, o.
payment IN full II must be considered that tn
agreement contempiates this, and that certain o
the accounts, c. d. and &. have been settled b,
total loss Until settlement, the house charges
the debtor parties and credits E. FurstenAu il
his account, and by the agreement is to remit
serniannually. II will be granted think that tn
defendants not bound TO pay interest afte
the principal has disappeared. and it must also b
considered that they are not to pay interest al
though If has been charged up TO the debtor an
credited in Z. Furstenau's current account for
considerable period of time before the hope o
collection is abandoned and the account writtel
of as a loss
II in a case of this kind they shall appear b
/ have, RENTED in excess of what proves to b
/ good principal, ] hold them not bound 10 remi
nll interest has accused in excess of the deficit
II there might be some difficulty in keeping III
current account exactly paid up, should hol
that on the final settlement with E Furstenau b
shall be paid only his share of actual realization
made and interest on them at per cent.
cannot take the view that the account state
at Z Fursienau's retirement from the firm is to b
treated as his capital, on which he is 10 have
per cent interest, without regard to what the FRI
/ may realize.
The higher rates charged on the accounts
the compensation of the firm for managing th
/ business.
/ With this expression of my views in additio
| and somewhat qualifying what is written by ID
Court, / sign the opinion. LAWRENCE McCuiL'