The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-06-17
OPINION OF THE COURT,
RY WHITING i

OPINlON Ot' i he COOR1,
BY WHITING, J.
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 off 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, 100000, and
it is also agreed that in the event of
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 him by
them, and to pay the cost price of the
same, delivery to be considered as given
by Wilson and Cockburn to Mcdowell,
whenever he succeeds in floating off the
steamship, and further agreed that
should Mcdowell fail in his attempt,
then he shall Immediately after such
failure recover and deliver up to Will
son and Cockburn, at the Pacific Mail
wharf, and free from all expense to
them, all the cables, blocks, ropes, Ium-
Der and other articles loaned by them
to him."
This agreement was duly acknowI-
edged and recorded in the Registry of
Conveyances in Honolulu.
1t appeared in evidence that the ar
ticleS to be furnished by Wilson and
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 $50
per 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 plaintiff
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 |
by him in the prosecution of the I'M
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
partners as to third parties, in fact
there were no profits to be shared.
Mcdowell failed in his efforts, and con-
sequentiy did not receive any compen-
satiOn. The theory upon which the
courts have held all those who partici-
pate in the profits of a business of ven
ture to be partners as to third parties,
and thereby liable to pay the general
Indebtedness, irrespective of any stipu-
latiOn between themselves, is that they
have shared in the results that were
made possible by the contraction Of
the debts, and therefore should con-
tribute to their payment. The $4,000
agreed to be paid by Mcdowell was in
the nature of bonus for the advance
ment of the articles in an hazardous
undertaking in which they might be
lost"
'I see no reason for changing the
order of non-suit made at the trial.
The foregoing is from the written de-
cision of the Circuit Judge, but in the
Bill of Exceptions is set forth the oral
decision of the Judge in directing a
as taken by the stenographer,
viz:
The Court granted said non-suit and
ruled as follows:
I'm granting the defendants motion !
for 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-
ing in the profits or losses Of the enter 5
prise, that the arrangement was be- ;
tween the parties for a loan of these !
and If the enterprise proved {
they would be repaid for
heir materials furnished, and also {
given bonus on behalf of Mcdowell" l
''Ths turning point In my mind is.