The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1899-10-12
IT WAS OvERRUlED
Demurrer in the Hebron
Helm Suit.
Judge Scanlsy Holds That Hobron's
Complaint Sufficiently AYERS
Breack Of Agreement.

In the suit of +. w. Hebron against
c. l. Helm. to recover damages for
breach of contract, Judge Stanley has
overruled the demurrer OF the defend
ant in the following decision:
To the plaintiffs complaint filed in
the above entitled cause the defend
ant demurred on seven grounds. OF
these the fifth and seventh. which re-
lated to the jurisdiction II this court
over the subject matter. were not ar
gued before me, and | therefore treat
them as abandoned and decline to con-
slider them.
The first and second points raised
by the demurrer are as follows: THAT
the. remedy of the plaintiff in this ac-
ton, if any, is in equity and not in
law, as the plaintiff and defendant
were at the time this action was
brought and now are partners.
That the agreement set forth in the
complaint and for the breach of
which this action was brought dis
closes and makes them, the plaintiff
and defendant. co-partners."
As stated by the Supreme Court in
re Strohm VS.. Wilson ct al. 10 Haw.
800. it depends on the contract itself
whether the parties thereto were part
nerS inter Sc, and the intention OF the
parties themselves as expressed IN the
contract is to he considered in deter
mining whether the relation of part
nership existed between them. The
agreement between the parties To- this
case recites' expressly that the parties
SHALL not be deemed or understood to-
he partners by virtue of the agree
ment, lit being expressly understood
that they are not partners by virtue
OF these presents or otherwise" Moth
ing can be clearer than the language
used by the parties To- the agreement.
and | accordingly overrule these
grounds of the demurrer.
The third, fourth and sixth grounds
| of demurrer are as follows:
"Third-That no cause of action or
| breach of agreement is set out in said
complaint.
"Fourth-That at the time OF the
bringing of this action there was nc
breach of the said agreement and nc
breach set out in the said complaint.
| "SiXth-That the alleged breach OF
| the agreement as set out in the com
plant does not constitute a cause oi
action"
In my opinion the complaint doe:
aver a breach of the agreement by the
defendant, and the plaintiff has set on
| cause of action. By the terms of th'
agreement dated March 10. 1898. the
defendant was bound to proceed to the
| Alaskan and Klondike regions, Nortl
America. there 10 locate. develop an'
purchase mines and mining claims ant
other property and to enter into an'
conduct any other enterprise or enter
prises and ventures that he may con
slider expedient until two years shall
be fully completed from the date q
these presents. March Is, 1898; fur
Tier he agreed for the periods afore
said 1.-TWO years from March 10, 1898
to apply himself assiduously, honestl
and skilfully to the conduct, manage
ment and advancement of the enter
prise or venture aforesaid and to de
vote his whole time and attention I
the objects thereof" The complain
alleges that the defendant did not ful
fill these terms of his agreement. an
in my opinion sufficiently AYERS
breach of the agreement by the dt
| PENDANT.
accordingly overrule the demurre
Ii Is so ordered.