The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-11-08

MAY OUT
Court
Rules in Hind
VS.. Low.
HOARE MATTER
ALSO DECIDED
Court Holds That Rosa Estate
Must Pay-Guardian Gets
No Commissions.

iS ouP4CiiC JUL @AfAC1t W.
opinions yesterday affirming the lower
! court i'm the cases of Robert Hind VS..
Eben Low and in the matter of the
| guardianship of James Hoare, a minor.
In the case of Hind VS.. Low the
Supreme Court in an opinion written
by Chief Justice Frear holds that it was
optional with either of the partners to
wind up the business at their desire.
The syllabus in the case is as follows:
A partnership of indefinite duration
may be dissolved at will. and one for
NAL for a specified period may be dis
solved in equity for cause, and probably
it may be dissolved at will before the
expiration of such period, though the
one SO d~issolving it will be liable to an
action for damages for breach of con-
tract and may be denied assistance in
equity.
But if the agreement of partnership,
though specifying a definite term, also
provides that the partnership may be
dissolved at the will of any partner at
any time, any partner may so dissolve
it at will without liability to action for
breach of contract or denial of assist
ance in equity in respect to an account
ing and winding up. The agreement in
question is held to be of this charac-
ter.
The court should not ~interpolate
words in a contract unless necessary to
effectuate the intention of the parties
as gathered from the whole instrument.
An agreement to arbitrate which is
| general and does not make submission
to arbitration a condition precedent to
the right to sue does not prevent suit
without first submitting to arbitration.
The suit was for an accounting and
for winding up the affairs of the Ko-
hala stock ranch owned by both par.ies
to the suit, and sensational charges
We're made on both sides.
The lower court ordered the dissolu-
ton of the partnership and the question
of an accounting is still to be settled.
for further proceedings.
ROSA ESTATE MUST PAY.
Inc supreme court III an dIIlfI1dllNG
opinion filed yesterday holds that the
estate of A. Rosa is responsible for the
property of James Hoare. a minor, for
whom Rosa was guardian. Rosa died
in 1898 having made but one accounting
since his appointment on May 4, 1880.
The affairs of the Hoare guardianship
| estate wore NprU rnttnh tonulad ond itl
was only after several years work
that the executor of the will of Rosa
made an accounting. The master rec
commended the oisallowance of a num-
Der of expenditures and of all com
missions, because of the negligence of
the guardian.
The court in its syllabus says:
If a guardian mixes the trust funds
with his own and keeps no separate ac-
count which is complete, reliable or
satisfactory, he must be charged with
interest upon money which he permits
to lie idle for an unreasonable length
of time.
A guardian is chargeable not only
with rents actually received by him
from the property of his ward but also
with such additional rents as he wouldf
have obtained had he faithfully and
diligently discharged his duties.
While a guardian should be allowed
all sums reasonably necessary for the
maintenance of the ward and aid BY
him for such purpose out OF the in
ON of the estate, still, where it APP
pears that such payments were made
by a deceased guardian, not at regular
intervals or in regular amounts, but
only irregularly as necessity required,
the guardians estate cannot, upon an
accounting by the executor of the viii
of the deceased guardian. be allowed.
in addition to payments shown to have
been actually made, a lump sum for
further payments not shown to have
been made but based merely upon con
lecture.
A guardian who is guilty of gross
negligence in the performance of his
duties is not entitled to commissions.
The court in an opinion by Justice
Perry says: 1T is due TO the neglect
of the guardian alone that more def
mite data was not available for the as
s~istance of the Master or of the court
in determining the true state of the ac-
count. W. cannot. as the record now
stands, say that the Master has erred
in his statement of the account or. with
assurance, that we can make a differ
ent finding more in conformity with
Justice.
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