Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1903-03-13
LAW OF PARTNERSHIP
INTERESTING EXPOSITION
BY CIRCUIT JUDGE GEAR
GRANTING MOTION OF PLAINTIFF
IN HIND VS.. Low FOR AP
PoINTMENT OF RE.
CElVER.

Judge Gear, in rendering his decision
briefly reported in the equity
suit OF Robert Hinu VS.. Eben p. Low,
NJ the outset thus states the case:
This is an action for a partnership
accounting, in which the bill alleges
a partnership between the parties
under a written agreement of partner
ship in a business of stockraisng and
agricultural pursuits. The agreement
contained the clause that the partner
ship was to continue for twenty-five
years from its date. II contained a
further clause that should either part.
ner desire" the other partner would
render an accounting. and that the
partners should appOrtiOn and divide
the property between them. 1t con-
tanned a further provision:
1t is also agreed should either
partner desire to retire, or wish to sell
his half-interest. the retiring partner
should give the refusal and the first
chance to his partner to buy all his
title and interest in said copartnership,
THE defendant answered. and
hearing upon bill and answer was had.
the answer being treated ms a demur-
ror: and after decision by Circuit
Judge Humphreys, the case was APP
pealCd to the supreme Court, and thu
supreme Court affirmed the Circuit
Judge. holding that upon the desire
of either party dissolution could De
had, and the COpaItnership terminated.
The plaintif made a motion in this
court TO have a receiver appointed. bas-
ing II upon the plcadings. exhibits and
papers on file and upon an affidavit
attached thereto Defendant filed a
counter affidavit In opposition to the
motion for the appointment of re-
Cclvor. but by stipulation in open court
this was withdrawn. and the motion
heard upon the pleadings and plain
tins AFFIDAVIT: defendant contending
that upon the pleadings ana affidavit
no cause was shown for the appoint
ment Of u receiver"
As the Supreme Court had decided
that the plaintiff was entitled to ter
inmate the partnership, Judge Gear
finds that the plaintiff now has right
to come into court for an accounting.
On the contention Of defendant how
that the retiring partner was bound
by the partnership agreement TO offer
the other partner the refusal OF his in
terest the Judge says:
| 1T Is familiar rule of law that a
contract cannot be enforced unless It
contains in itself all the elements nee
cssary to constitute n complete con-
tract. One of the essential elements OF
a contract of sale. or an agreement 10
sell, Is the fixing of price: and the
agreement should either contain some
statement, showing the price, or else
contain or disclose some means by
which the court is to ascertain the
price"
} Judge Gear quotes the following from
a Massachusetts case:
| The Court cannot therefore go out
side Of this writing to ascertain what
the real agreement Of the parties was
In this particular The writing being
incomplete in one Of It's essential terms,
and the Court having no means TO
which it can lawfully resort to supply
the defect, specific performance must
| fail"
Judge Gear quotes several analogous
cases from the books and proceeds TO
say:
How can tn" Court in this case.
without adding to the terms Of tho
contract, find any means by which TO
fix valuation ut which the retiring
partner Is to sell his share. For the
Court to add to the contract would be
to make a new contract for the par
ties, and II they have failed 10 put in
| terms required by law, the court can
not do so for them.
| 1T Is next Contended by defendants
counsel that IL 1t be held that plaintiff
could not be compelled to sell his in
terest to the defendant, still the par
ties are bound by the clause in the con-
tract of partnership relating TO arbi.
tration, and that in winding-up the
partnership affairs it must be done by
arbitratOrs. The argument as to arbi-
tration Is found in Clause q Of the con-
tract, and reads as follows:
1t is also agreed that In case Of a
Misunderstanding arising between the
parties hereto, which cannot be settled
between themselves, such difference of
opinion shall be settled by arbitration
upon the following conditions tO-wit:
Each party to choose one arbitrator,
which two thus elected shall choose a
third; the three thus chosen to de-
tormine the merits OF the case and ar
range a basis OF settlement
II am clearly Of the opinion that this
clause refers alone to 'mismdcrsland-
jYgs' and differences Of opinion arts
ing between the partners during the
continuance of the partnership, and
does not cover and was not intended TO