The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-08-14
FREAR, CD, GALBRA1rH AND PERRY, il.

OPINION OF THE COURT BY PERRY j.
(Galbrah, j. dssenting)
This is suit in equity wherein the main avernents of the
I'M are "ha sometime during the month of September 1898
wit on September 1 1885, the petitioner and respondent
oral agreement entered into partnership under the terms of
which they became equal partners the business of soliciting
lie insurance the Island of OAHU Hawaiian Islands, and
we're participate share and share alike in all losses profits
the same that said partnership continued and existed up to-
Wit the 10Th day of December 1885, when by mutual con
znt said partnership terminated; and that accounting
said partnership business has been had The prayer that
RESPONDENT be required submit accounting of said part
rp matters and such other relief as may be proper
The respondent denies the existence cf the partnership as
alleged The below after trial the merits was of the
opinion that the evidence the issue of whether not the
alleged partnership had been entered was evenly balanced
and that the complainant had successfully borne the burden
proving his averments by preponderance of the evidence,
and for that dismissed the bill From that decree the
complainant appeals to this Court.
The issue of fact The complainant testies positively
that time in the early part of September 1898, the
respondent and himself orally agreed work together part
the business of soliciting life insurance sharing equally
nall the expenditures made and in all the commissions received
ps issued in consequence of their joint and their several
and that continued force, with an
exception be hereinafter referred until December 49, $685.
when terminated by mutual On the other hand
respondent ees positively that during the period named
such agreement entered by between the parties
and that the only understanding between them at that time
that such insurance business the complainant gh obtain
Na obtaining he was to receive as compensation certain
portion the commissions There is an irreconcilabe conflict
the testimony of these witnesses this essential point
We believe the testimony of the complainant that the agree
nt partnership entered into by the parties Aside from
tie testimony of the parties themselves, but little evidence was
iu tending throw light the main issue; and yet the
nans without confederation in the acts
the parties the testimony of disnterested witnesses
10 the witness May local agent of the Germania Life lnsr
M To- with whom the respondent placed insurance hu
a the respondent stated in September October OF 1885,
A Biae and himself had been writing business together
the Manhattan Insurance Co and that they wished to place
e business in the Gennania and in December 1898 that he
going to California and that the arrangement between Bas
and himself ceased from that day. and that any business that
70 turned by Blaisdel would be his individual business
~ urhr ifes thai the expression, writing business To-
H USED by insurance men, imports partnership ana
nuns 'atements to May just above mentioned shows that ne
IL ' se' the oppression in that sense.
P'dsl accepted share of the commissions IN at ieaSV
S Where the insurance effected solely through baS
SSlrs Again. during the period in Question Burns mace
Typ to Kauai solicit insurance Blaidel being unable to
a'y INN, it specially agreed between the two that
usa received from such business Burns might secure
M Tor the latter alone and would not be shared IN oy
No such special agreement necessary unless tnere
II s'HefaI agreement to the contrary.
dng having been made by the court below as to the
the account between the parties, prefer to make
ny" IN the first instance. The decree appealed from IS
R and the remanded to the Circuit Judge OF She
NO. ut for such further proceedings may be proper
r. SlSSlent with the foregoing views.
!, "g baaoH HcClanaban for complainant
'" Thompson for respondent.
DISSENTING OPINION OF GAIBRAITH j.
Idna - ~
nj" agree with she conclusion nor the gwen by
YIN the above opinion If the issue of fact ana
ny reconcable as is stated it seems that the finding
lon of the CSrcut Judge who heard the witnesses
qua observed their conduct while 50 doing is not gwen
sh and considoro4; l;ob r i entitled. believe