The Hawaiian gazette., 1904-12-20
.HAGEy SUIT
DETERMINED

| to be finally decided at last By a
unanimous opinion OF the Supreme
Court. Thomas Milner Harrison, plain
tin. IL the loser after coming here
| from Il foreign country and waiting
all these years for what he claimed to
be justice. The author of the opinion
is Justice Hartwell and its effect is
to overrule the exceptions OF the plain
tiff from the Judgment of Judge Robin
son in granting IA nonsuit and denying
n motion for a new trial. Robertson a
Wilder were attorneys for plaintiff; j.
A, Magoon and ]. Lightfoot, Kinney,
McClanahan & Cooper and $. II. Der
by for defendants.
| ]. A. Magoon, f. Il. McStocker, L. c.
Ables, Dorothea Emerson (nee Lamb
Il. l.. Cowart, ]. II. kirkpatrick, A. E.
| Pewter, j. Wolfenden and George ID.
Moore were the defendants In the case
now decided. In former action
brought by Harrison against Magoon,
McStocker, Ables and Emerson the
Supreme Court held the declaration
bad for non-joinder of the other par
ties to the agreement upon the alleged
breach OF which the cause was based.
The plaintiff then Joined the other par
ties and obtained a verdict which was
set aside by the Supreme Court on ex-
| ceptions on the ground that the court
| below enormously instructed the jury
that the agreement was within the
| scope of the business of the articles OF
| association OF The African Pacific and
Indian Hagey Company, an association
of partnership formed in Honolulu Re-
public of Hawaii. April 10, 1897. At the
third and last trial in the Circuit Court
nonsult was ordered on November
8, 1908, and judgment entered thereon
on November 12. A motion for new
trial was made two days later "for
errors at the trial as well as in grant
ing the nonsuit," and on January 10,
1904, this motion was dismissed and
time for filing a bill of exceptions ex
tended. on this the Supreme Court
gave Its third decision i'm the case,
denying a motion of the defendants "to
dismiss the bill on the ground that the
exceptions taken at the trial were inn
properly Incorporated in the bill" That
decision was on the ground that the
exception to the nonsuit required con-
sideration," and now in its fourth de-
cision the court is of the opinion that
the only exception in the bill which
was presented within the time required
| by law is that which was taken to the
dismissal of the motion for a new
| trial"
From the conclusion just stated the
| court goes on to decide. as stated in
the syllabus, thus:
"A nonsuit is properly ordered upon
failure of the plaintiff in an action
against joint contractors to prove that
any OF the defendants executed or rati-
| fled the agreement declared on"
AS registered in Honolulu the Hagey
| Cure Co. consisted of T. +. Cowart, ].
H. kirkpatrick and Geo. ID. Moore of
the State of Texas, A. L. Pewter Of
| Montreal, Canada, and ]. A. Magoon,
f. B. McStocker, l.. C. Ables and
Dorothea Lamb of Honolulu. Four of
these partners signed an agreement in
New Zealand whereby the company
| took In as new partners Alfred Ed
ward Gilmore and Thomas Miner Har-
rison, agreeing to give them G225O
| C$11,2 ,250) If, after a certain trial, they
of the business. The three partners in
Honolulu did not sign or authorize the
signing Of the agreement. Letters
We're received in Honolulu from one or
the partners in New Zealand mention
irg that they had sold one-half interest
in Tasmania for 5000 sheep and $500
| (s2500), that the sale of Tasmania was
| for nine-twentieths of the territory and
that one of the partners mot having
signed the agreemenD was coming to
Honolulu and would put things to you
as they are" About the same time
| the partners here received an IS per
cent dividend on their stock, a small
portion of which appeared to have
been derived from the Tasmania sale,
as shown by the trial balance received
at the same time.
On these statements Of fact the court
holds: THAT this was not evidence on
which the partners in Honolulu could
be held to have ratified the agree
ment."
Finally the court holds that the
agreement purporting to be made be-
tween the Hagey Cure Co. and Gilmore
and Harrison, accepting the latter two
as partners in the company. "is an in
complete agreement for the purpose of
forming the proposed partnership un"
less all the parties sign, there being an
implied term in the agreement that all
should sign in order that the signers
incur several liability. There being no
partnership formed in this case in
consequence of the failure of four of
the parties to sign the agreement. no
partnership rights or duties were ere
ated by the complete agreement"
| PARTNERSHIP DEFINED.
| Judge De Bolt is sustained by a
unanimous decision OF the Supreme
Court in finding that a partnership ex-
listed between plaintiff and defendant
in the suit of Albert Barnes against
Charles X. Collins for accounting, etc.
Chief Justice Frear is author OF the