The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-05-01

Its condition and on or about March TO- 1898 nots
ners to that effect; that on or about the last
made demand upon his partners to deliver 70 asI
terms of paragraph OF said agreement, stock Of a.
value OF two thousand pounds in district otbo
mania OF the field OF operations of said parnesbn.
demand has not been complied with either in who'll !.
that about March l. 1885, he paid, transfar,aa
cred to the parties Of the first part named in the
funds, moneys and assets Of said partnership =; 10:
also an account of all disbursements and exned- f
him for and account of said partnership. and 40.
moneys, assets and account were accepted and
partners true and correct; and that at the nror.
settled account indebtedness exists between b lug
partners except to this claim of two Thousand J
terest and costs.
Ihe second count is upon judgment for s1oe i.
Is alleged, recovered June 13, 1899 at the ;. ~
land N L., by the plaintiff against the defendants ~
gether with T. E. Cowar j. H. kirkpatrick and az !
Moore Ii the Supreme Court of New Zealand Norbs1
tr1ct The other allegations are, that at the time ~
action and of the rendition of the said iudgmert a
Supreme Court of New Zealand was court Of record
land, having jurisdiction the parties plaintiff and d
and also of the subject matter in and of the said
no part of the amount of said Judgment has ever been u
To this declaration the defendants demurred on II. en-
grounds:
II. That there is defect or nonioinder Of rs-.
PENDANT
%. That several causes of action have been mur
united
So That the declaration does not set forth facts snS
constitute cause of action.
Il That the Court has no jurisdiction of the subject
set forth in the first count of said declaration nor m
count allege jurisdctioral facts.
D. That the Court has no jurisdiction of the subject
set forth In the second of said declaration nor M
count allege jurisdctiona facts.
70 That the plaintiff has failed to allege the exisH
some other District than Tasmania of stock of the ma
OF Two thousand pounds (e2O00).
= That it appears by said complaint that said plana
these defendants copartners in respect to the mates
things IN said declaration alleged and that no action
lie between said copartners for such matters and things
49, That the declaration is ambiguous, uninteHsA
uncertain in that it does not forth the continuance
dissolution of the partnership relations created by the
dunn of agreement thereto attached"
The court below sustained the demurrer on seyal
grounds named. The case now comes to this Court aa
lions which present the question of the correctness
and of the merits of the demurrer Those objections
considered first which go to the merits of the action itself
and 6. On behalf of the defendants it is contend
the plaintiff not entitled recover upon the present
ton nasmuch he has not therein ayerred (a that Gin
not recovered the 2250E mentioned in paragraph oh
ment or judgment therefor that he has not instituted
lngs for such recovery, ) that the stock in said p
1erred to is or ever in existence (c that any tend
made by him to the defendants of the stock held by bin
partnership at the time demand made for the 20O0
Stock and because d) it appears that the promise by b
pany in that paragraph mentioned was without cOnss
and that it is therefore void
(a) The language of paragraph is in par,
the said Gilmore or the said Harrison Is
isfed the said Company will give the said
OF the SAID Harrison stock" and from this it is argued
remedy here provided for is in the alternative and @
taken advantage of by both men, in other words tn
Gilmore or Harrison may if dissatisfied receive the @
nondelivery of which the action is now brought but
both of them may have such stock because that would
polling the Company to deliver the same stock tTl@
argument, though perhaps expressed in these prc
necessarily involved the taking of the position that
either Gilmore or Harrison may recover
amount of stock to w.t. stock of the market value
We believe that the agreement is not capable Of this
tlon Its language in this respect is clear and unA
The undertaking is, upon the happening Of the COW
stated to "give the said Gilmore or the said Harrison
the market value equal to the amount paid BY nu
(2250E) said Two Thousand Two Hundred and fnq r
mentioned in clause (2) two hereof IN eA' te
the portion Of the said (2250f) Two Thousand Two
and Fifty Pounds taken by him" Clause shows m'' ia
and Harrison together paid 2250f for nine-wenns pa
n the partnership by the said agreement formed anu
further shows that of this sum Harrison paid 2VVo
ifths interest and Gilmore 250E for onetWenu'D st