Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1903-03-13

cover the maj settlement Ol lu' pdlN
norahip affairs after distribution. But
regardless Of this reason why the ar
oitration clause should not now apply,
II seems to me that the reasons which
are the basis of the rule enumerated by
the Supreme Court in this same case,
that a general agreement TO arbitrate
which does not make submission 20
arbitration condition precedent TO
the right to sue does not prevent suit
without previous arbitration, apply
with equal force now, and that there
fore the agreement does not Dust the
court of jurisdiction 10 order an ac-
counting and wind-up the partnership
business
1T is well settled that an agreement
to arbitrate cannot be specifically en-
forced. and yet the counsel Tor defend-
ant claim that 1t must be enforced be-
fore the plaintinl is given the right TO
Il dissolution and accounting in court
Of equity. A mere reference to the
text books will show the error Of cOun-
sci.
1T is well settled says Judge Sell
den, that courts of equity will never
entertain a suit to compel parties
specifically to perform an agreement to
submit to arbitration.
/ "In an elaborate opinion, delivered
by Mr.. Justice Story. the rule that q
court of equity will not enforce spe-
cflc performance Of an agreement 10
refer Is laid down. aud Is supported
both by argument and authority. A
naked agreement TO refer. without say
ing more, how and when. and TO whom
the submission is TO be. can hardly be
deemed more than an inChOate and i'm
perfect agreement. the first step only
in negotiation which Is to fall OF
itself II the arbitrator are not agreed
upon But II these subsequent mat
ters. such as the nomination of the ar
bitratOrs have all been settled. and the
agreement to refer is complete and abb
Solute. still the impossibility of enforce
Ing specific performance survives. The
cases are divided into two classes: one
where an agreement to refer to arbi-
tratiOn has been set up as defence
II suit at law as well as in equity:
the other where the party. as plaintiff
has sought TO enforce such an agree
menJ in a court of equity Both
classes have shared the same fate. The
courts have refused to allow the for
mer as bar or defense against the
suit. and have declined to enforce the
latter as ill-founded In point of juris-
diction'
Quoting many authorities. Judge
Gear discusses the right of the retiring
partner to have a receiver appointed
Iand concludes:
Upon the case as presented to the
Court by the express agreement of
counsel the facts being uncontradiCted
IL follows that the motion of plaintiff
must be granted. The defendant will
end is hereby ordered to render forth.
with to plaintiff full. accurate and
final account of the condition of the
partnership. The Court hereby ap.
points w. G. Cooper a receiver to take
possession of the personal property
assets and business of said cOpartner.
ship, with full and complete authority
To wind up said business, to take al
inventory of all property and assets o.
the copartnership, and to make sal,
thereof and reduce the same to cash
, and hereby orders that the Receiver
pay all the legal liabilities of said co
partnership out of the proceeds, anC
divide the balance between the part
ners according TO their respectiv,
rights thereto. subject. however, to Tho
order Of the Court. The Receiver Il
Assume his functions upon giving ,
good and sufficient bond in the sum o.
Sl5OOO0 approved by the Court"