The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1896-06-19


been any sharing of profits, that no
partnership having existed between the
parties themselves, so that Mcdowell
might come upon the other gentlemen
for contribution in case of an indi-
vidual loss, that there must be clear
showing that there was participation
in profits that they might establish
prima facie case. The most that can
be said is that it was a contemplated
participation in profits, and therefore
would participate in any of the losses
of the parties. That is one of the
grounds on which l sustain the objec-
ton to a. prima facie case being made
out. As l said before, / consider it a
very close case, very near to the line.
At present am of the opinion that a
non-suit should be granted, and it is
so ordered"
This was not a general trading or
commercial business, but special ven
ture involving special and extraordi-
nary risks. The materials loaned were
to be returned or paid for. The price
to be paid for the loan is very large,
but who can say it was disproportion-
ate to the risk of the venture. The par
ties to the contract had no intention
of making a partnership, and no such
intent appears from or can be inferred
from the contract itself. The defend
ants Wilson and Cockburn took no part
in the work, nor did they hold them
selves out to the plaintiff in any way
as partners of Mcdowell, nor in any
manner SO as to estop them from de-
nying liability to creditors of Mellow
ell. And considering all the circum-
stances, there is no partnership.
Participation in the profits or the
right to participate therein is not an
invariabIe test of partnership, even as
to creditors. A person not actually en-
gagged in the business as principal and
not holding himself out as a partner
cannot be held for debts incurred in the
business, unless in virtue of some con-
tract express or implied, on his part,
| in legal effect creating, as between him
and the persons actually carrying on
the business, the relation of principal
and agent. Merely sharing in the prof
it's. where third persons have not been
legitimately led to believe in the ex-
istence of a partnership, does not create
a partnership as to them, unless there
is one in fact, or unless party has by
his acts put himself in such position
that he is estopped from denying that
he is partner"
Embersen V. McKenna ct al, 16 S. w.
Rep, 419.
Mere receiving of profits is not suf-
| ficient to constitute a partnership, but
all the circumstances must be consid-
cred. Examination of the authorities
| cited, and of the cases referred to by
them, will show that partnership can
not be inferred merely from common
interest," from a sharing in profits, from
the right to account, nor from a direct
control over the business"
Tucker V. Estate of Metcalf, Haw,
1913.
1t depends on the contract itself
whether Wilson and Cockburn were
partners of Mcdowell. 1t is claimed by
| the plaintiff that this document is
prima facie proof of partnership, and
that thereforea nOn-suit should not have
been granted; that the agreement to
pay $4,000, which was a third of the
price for the successful floating of the
steamer, in consideration of the loan of
81, 500 Of materials, was participation
in the profits, and therefore is prima
facie proof. of partnership. But this
is what the Court is to decide, and from
the document itself, for there was no
testimony outside the contract going to
show the existence of a partnership;
on the contrary, the evidence produced
by the plaintiff, who called the defend
ant Cockburn, is directly against the
theory of partnership and direct de-
NAL of partnership or intent in any
way to be or become partners or to
hold out to any one that they, Wilson
and Cockburn, had anything to do with
| the venture other than their own adj
vances-or loans.
1t is claimed on the authority of
Pooley v. Driver, L. R., 5 Oh. Div, 45S,
In re. Francis, 2, Sawyer, 2S6, and Par
ker v. Garfield, 81 Conn, $50, that this
| document was a mere cloak or device
under cover of loan to conceal part
| nership and thus escape Liability to
creditors.
The law will not tolerate any evasion,
but whenever the agreement creates an
matter of fact the relation of partner
ship, no. mere words to the contrary
will prevent, as regards third persons,
its having its legitimate consequences.
That was the law of those cases, and
the evidence and facts sustained the
conclusions arrived at, and there were
many other circumstances in each case
which showed a latent design to ere
ate partnership under the disguise of
loan.
But in the case at bar we cannot find
sound grounds to suspect any such la
tent design. 1t clearly appears that in
fact there was no partnership, in fact
no intention to in any way create a
partnership. Being a special venture,
the parties, Wilson and Cockburn, have
clearly set forth the intent to loan spe-
cial apparatus, which, to be sure, they
were Obliged to purchase, as they were
not engaged In any business which re-
quired the same to be kept on hand,
and there being risk of its entire loss,
they sought merely to obtain remunera-
ton in proportion to the risk; and I'M
der the circumstances of this case one