The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1896-06-19
OPINION OF THE COURT,
BY WHITING, ].


The steam ship '.Miowera" was
aground off the port of Honolulu and
one Mcdowell agreed with the agents
of the vessel to float her without dam
age to the vessel for the sum of $4,000,
within a period of seven days from the
commencement of the work.
Mcdowell then entered into an agree
ment with w. F. Wilson and A. Cock
burn, whereby, in consideration of Will
son and Cockburn 'loaning to him GER
tain cables, blocks, ropes, lumber and
other articles to be used by him in the
attempt to float of into deep water the
steamship 'Miowera,' now stranded on
the reef at the entrance to Honolulu
harbor," Mcdowell binds and obliges
himself to pay to Wilson and Cockburn,
when called upon to do so, S6,0OO.0O, and
it is also agreed that in the event Oh
Mcdowell being successful in floating
the steamship, then he agrees to pur-
chase from Wilson and Cockburn all
the said cables, blocks, ropes, lumber
and other articles loaned TO MIN by
them, and to pay the cost price Oh the
same delivery to be considered as given
nv Wilson and Cockburn to Mcdowell,
whenever he succeeds in floating of the
steamship. and further agreed that
should Mcdowell fail in his attempt,
then he shall Immediately after such
failure recover and deliver up to Viii
son and Cockburn, at the Pacific Mail
wharf. and free from all expense to
them. all the cables, blocks, ropes, lum-
tola them
to him."
This agreement was duly acknowl-
edged and recorded in the Registry OF
Conveyances in Honolulu.
IT appeared in evidence that the ar
ticles to be furnished by Wilson ana
Cockburn were not to exceed in the
whole 81. 500. and that articles were act
ually furnished to large part of that
amount. Mcdowell failed in his at
tempt. The plaintiff, with numerous
other workmen, was employed by Nc
Dowell in the attempt to float the
steamship. and was to be paid $500
Der day and double pay for night work,
and if the attempt was successful was
to receive double pay for whole time.
Mcdowell did not pay the plaintln,
and he. the plaintiff Strohm, now seeks
to hold the defendants Wilson and
Cockburn liable on the ground that
they are partners with Mcdowell in his
venture under the agreement between
Mcdowell and Wilson and Cockburn.
At the close of the plaintiffs case
motion for non-suit was made and
granted by the Circuit Judge who heard
the case without jury, ION the ground
that the plaintiff had not established
prima facie partnership between NC
Dowell, Wilson and Cockburn at the In
ception of the enterprise as would au-
thorize Mcdowell in the absence OF the
others to bind them for debts incurred
nv him in the prosecution OF the un-
dertaking. and also for the reason that
the evidence had failed to show that
Wilson and Cockburn or either of them
had become liable to pay the wages OF
the laborers by any acts OF omission or
commission on their part.
The Judge also found there was no
General sharing Of the profits between
the defendants as would make them
mariners as to third parties, IN 1act
there were no profits to De Shared.
Mcdowell failed in his efforts, ana con
seouently did not receive any compen-
sation. The theory upon which the
courts have held I'll those who particl-
nate in the profits of business OF ven
t,,re to he partners as to third parties,
80 thereby liable to pay the general
;n5ebtedness. irrespective of any stipu-
Iotion between themselves, is that they
have shared in the results that were
made possible by the contraction Oh
the debts. and therefore should con-
tribute to their payment. The $6,OoO
agreed to be paid by McDoweh was ~
the nature OF a bonus for the aoVance-
ment of the articles in an HAZARDOUS
undertaking in which they might DC
lost"
81 see no reason for changing the
order of non-suit made at the trial.
The foregoing is from the written de-
c;sion of the Circuit Judge, but in the
p,Il of Exceptions is set forth the oral
decision of the Judge in directing
non-su;t as taken by the stenographer,
viz:
yuled as follows:
an granting the defendants motion
sor non-suit. the Court finds that |
there has been no partnership shown,
nor such an arrangement or agreement
between the parties that it was shar-
i1,p in the profits or losses OF the enter
nrise that the arrangement was be-
tween the parties for loan OF these
-.terials. and IL the enterprise proved
,vccessful they would be repaid for
shsA materials furnished, and also
I've. 4 bonus on behalf OF Mcdowell"
s-IAs turning point in my mind IL,