The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1882-12-06
Aaluaiiatr @azettE.
WEDNESDAY. DEcEMBER 6. 1850.
supreme Court Osiths Hawaiian Islands
In Equity.
EDWARD G. WAILER VS.. GILBERT WALLER.
Before de Chancellor. By he Court.

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EDwARp G. WALLKR VS.. GILBERT WALLER
BEFORE he Chancellor. By he Court
This is a Bill in Equity alleging that il
the month of January, 1869, the Plaintiff
formed partnership with Gilbert Waller, re
spondent, for the purpose Of butchering anl
selling beef and mutton under the style o
" Gilbert Waller 'and which has continued tt
the present time;the Bill also alleges that Plain
tiff devoted his whole time faithfully aut
industriously to the business, with the excep.
ton of two stated periods, when absent; tina
he has drawn from the business only the barr
living expenses of himself and family, and thu
sum Of about $500 for the purchase of lane
and the erection of homestead, whereas thu
respondent has drawn large sums Of money
| far beyond his share of the profits of thu
business; that in May 1882, respondent ex-
cluded plaintiff from any share or participation
in the management of the business and refused
to settle with him. The Bill prays for Ar
Injunction restraining the respondent from
disposing of the partnership property; tina
the partnership be dissolved and a Receiver
be appointed, etc.
The answer denies that the alleged partner
ship ever existed and avers that since January
1869 to May 1882 the plaintiff was employed
by respondent as clerk and book-keeper and
that he has been paid all sums of money
earned by him in this capacity, and that the
plaintiff has complete remedy at law to
recover moneys he may claim to be due.
/ find that the parties are brothers, the re-
spondent t1T;lg- the older. The plaintiff has
acted undf I'M bower Of attorney during the
absence ofoi Pondent and has been accustomed
to sign as y Attorney in fact" when drawing
the funds Of the business.
The plaintiff has been allowed to withdraw
whatever sums he thought necessary for bis
private use, and has done large part of the
business, having its entire management dur
ing respondents absence Of about three years
in California.
It is evident from the testimony that the
respondent intended to give his brother q
share in or the whole of the business eventu-
ally and that be allowed him to draw whatever
he wished to for his support, unchecked, as q
kind and indulgent brother, until his habits
compelled him, for his own protection, to take
the step of severing their business relations
There is no positive proof of co-partnership
Gilbert Waller never held bis brother out "a
the world as his partner and there is nothing
in the way the business was managed to sug-
gest partnership. The use Of the pronouns
Gus and eve" by Gilbert in his correspon-
dence with his brother and his speaking Of the
business as tours" to my mind only indicates
familiar and complimentary habit Of
speaking, which is not sufficient proof of a
partnership. In fact, the rather authoritative
and minute instructions sent by him in
reference to the disposition of certain lease
holds and other property especially in the
letter of April 9th, 1880 are inconsistent to my
mind, with the latitu6e which one partner has
right to exercise over partnership property.
There are certain declarations sworn 10 by
respondent and wife as having been made by
plaintiff that he was not a partner of his
brother Gilbert Waller. These are not re-
membered by plaintiff or his wife, although
present when the alleged conversation took
place.
There is testimony which is not disputed, of
the plaintiff putting into the respondents
hands sum Of money, some $3.50, and which
be has not accounted for, but there is no proof
that this was put into the business as capital
with the understanding that it was the plain
tiffs contribution towards the partnership.
The statement is made that Gilbert Waller
said that when the business increased to the
slaughtering of two bullocks day it would
give one hide to the plaintiff and one hide to
himself. think this is explained on the idea
that Gilbert then intended to give his brother
an equal share in the business but which he
never carried out.
Upon careful review of all the testimony
l have arrived at the conclusion that no
partnership is proven and therefore dismiss
lie Bin.
S. D. Dole for plaintiff E. Preston for re-
spondent.
Honolulu, Aug. 18th, 1852.