The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-06-17

/ been any sharing of profits, that nc
partnership having existed between the
! parties themselves, so that Mcdowell
} might come upon the other gentlemen
/ for a contribution in case of an indi-
( vidual loss, that there must be a clear
showing that there was participation
/ in profits that they might establish a
Drima facie case. The most that can
BE said is that il 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 / sustain the objec-
ton TO prima facie case being made
out. AS l said before, l consider it a
very close case. very near to the line.
At present l 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 a 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 10 the contract had no intention
of making 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
invariable test of partnership, even as
to creditors. A person not actually en-
gagged in the business as a 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
its, where third persons have not been
legitimately led to believe in the ex-
istence of partnership, does not create
a partnership as to them, unless there
is one in fact, or unless a party has by
his acts put himself in such position
that he is estopped from denying that
he is a partner
Embersen V. McKenna ct al, 16 S. w.
Rep, 419.
Mere receiving of profits is not sllf-
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 a common
interest," from a sharing in profits, from
the right to account, nor from a direct
control over the business
Tucker V. Estate of MetcaIf. 8 Haw..
1913.
1t depends on the contract itself
Wilson and Cockburn were
partners of Mcdowell. It is claimed by
the plaintiff that this document is
prima facie proof of partnership, and
hat 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, 800 OF materials, was participation |
in the profits, and therefore is prima |
,ac1e proof of a partnership But this |
S what the Court is to decide, and from
he document itself, for there was no |
testimony outside the contract going to-
snow the existence of a partnership: |
IN the contrary, the evidence produced |
~ the plaintiff, Who called the defend
INT COckburn, is directly against the
heory of partnership and a direct de-
hal OF partnership or intent in any
way to be or become partners or to
lOld out to any one that they, Wilson
nd Cockburn, had anything to do with
he venture other than their own adj
anceS-Or loans.
1t is claimed on the authority of
'ooley V. Driver, L. R., CHI Div, 458,
n re. Francis, 2, Sawyer, 2S6, and Par
er V. Garfield, 81 Conn, $50, that this
Ocument was mere cloak or device
nder cover of a loan to conceal a part
ership and thus. escape liability to
reditors.
The law will not tolerate any evasion,
ut whenever the agreement creates as
matter of fact the relation of partner
hip, no mere words to the contrary
ill prevent, as regards third persons.
s having its legitimate consequences.
hat was the law of those cases, and
he evidence and facts sustained the
exclusions arrived at, and there were
lany other circumstances in each case
Thich showed a latent design to Gre
te partnership under the disguise of
loan.
But in the case at bar we cannot find
ound grounds to suspect any such la
ant design. 1t clearly appears that in
act there was no partnership, in fact
o intention to in any way create a |
Being a special venture,
ne parties, Wilson and Cockburn, have
early set forth the intent to loan spe-
ial apparatus, which, to be sure, they
ere obliged to purchase, as they were
OF engaged in any business which re-
uired the same to be kept on hand,
nd there being risk of its entire loss,
ley sought merely to obtain remunera-
on in proportion to the risk; and I'M
er the circumstances of this case one
as the right to fix and limit his liza
ility, and the law will not make
with liability to. third par
es under these circumstances. 1t !
light as we'll be said that the plaintiff {