I respectfully dissent. The sufficiency of the bill of complaint to entitle the petitioners to the relief prayed or any relief was not raised upon the plea to the jurisdiction nor passed upon by the circuit judge. Nor was the question presented or argued in this court by the parties to this appeal. It was not until argument in this court that the question was raised by myself of whether the bill of complaint was sufficient in law to permit the circuit judge to act advisedly upon the plea to the jurisdiction inasmuch as the only allegations of the bill of complaint in support of the prayer for an accounting were that the respondent, in spite of demand, had failed to render an accounting to petitioners or to exhibit to them the books and accounts of the copartnership or to distribute the partnership property and that the bill of complaint failed *Page 214 to allege that there were firm assets or firm liabilities and that anything was due petitioners from respondent. Implicit in the plea to the jurisdiction was the sufficiency of the bill to justify the court in retaining jurisdiction and refusing to remit the petitioners to the forum of convenience.
Nor has this court by its majority opinion done more than to assume the sufficiency of the bill. Contrary to the statement contained therein, the bill does not allege "in effect" or otherwise any duty on the part of this respondent to perform "peculiar trusts and duties arising from the termination of the partnership relation and placed upon her by the articles of limited partnership." Moreover, the bill does not allege "in effect that the respondent refused on demand to perform her exclusive duty to liquidate the dissolved partnership's assets and from the proceeds to pay its debts, repay to the petitioners the sum of fifty thousand dollars as their contribution of initial capital and distribute to the petitioners one half of the balance as their proportionate share." The bill merely alleges:
"VIII "That although petitioners have demanded that the said respondent render an accounting to them as such managing partner, and exhibit the books and accounts of said partnership to petitioners for inspection and examination, and distribute the property of the limited partnership belonging to petitioners and each of them, respondent has refused and failed, and continues to refuse and fail to render said accounting or to exhibit said books and accounts or to distribute said partnership property.
"IX "That the location of said books, papers, documents, records and accounts of said partnership are to your petitioners unknown; that your petitioners are informed and believe, and upon such information and belief allege the *Page 215 fact to be that respondent has in her possession or under her control numerous books, documents, papers, bank statements and records relating to the transaction of said limited partnership which said respondent has retained and concealed, and to which petitioners have no access at the present time * * *" [italics supplied].
The copartnership, out of which this suit arises, was dissolved on July 31, 1947, by the mutual consent of all partners who are parties to this action. Nowhere in the bill of complaint nor in the articles of copartnership, as originally adopted and as subsequently supplemented, are any duties imposed upon any of the partners after dissolution. The copartnership was originally composed of the parties to this suit and one Edward John Harrison, who died on November 6, 1946. Mr. Harrison was designated in the articles of copartnership as the managing partner and it was therein provided that upon his death his wife, Anna J. Harrison, the respondent herein, should be the managing partner. It is true that it was provided by the articles of copartnership, as supplemented, that all "Books of account of the transactions of the firm shall be kept with all other papers, documents and records of the firm at its principal place of business, or at the office of the managing partner, and shall be open to inspection at any time by any partner or his authorized representative. At the end of each calendar year during the existence of the partnership, an inventory shall be taken and an accounting had for the preceding year by independent accountants. The profits or losses disclosed by such accounting shall be credited or charged against the respective partners. Statements of profits and losses shall be sent by the managing partner to the other partners each month, together with a statement of cash on hand and of accounts receivable and payable, and also a summary of the trend of the business, including therein an *Page 216 outline of the major transactions of the firm during such period," but the keeping of the books of account did not devolve upon the managing partner nor was it his or her duty to do anything in respect thereto except to send monthly to the other partners the statements detailed in the last sentence of the preceding quoted excerpt. Moreover, this provision is applicable to books of account and the duties of the managing partner during the existence of the copartnership. The partnership, however, has been dissolved and there is no provision contained in the articles of copartnership, as supplemented, imposing any duty upon the managing partner after dissolution in respect to the books of account of the previously existing copartnership. No greater duty devolved upon this respondent, as the former managing partner, than upon the other partners to provide a place of custody for the books of account of the pre-existing copartnership or retain them in her possession for inspection of her copartners.
Nor was any duty imposed upon the managing partner upon dissolution to make distribution of the partnership assets. The articles of copartnership, as supplemented, make provision of the manner of distribution upon the termination of the partnership and the priority of application. But it is absolutely silent as to upon whom of the partners the duty of making distribution devolved. The dissolution agreement is also silent upon the subject.
But this is not all. The bill of complaint fails to allege that there are firm assets or firm liabilities and that there is anything due petitioners from respondent. Were the parties to this action residents of Hawaii and were the accounting prayed one that arose out of a local copartnership, the bill of complaint might stand muster against general demurrer. But from the absence from the bill of complaint of the allegations to which I refer and I deem essential to the exercise by the circuit judge of his discretion, *Page 217 the bill is fatally defective. It would be a commendation upon the wisdom of the majority decision were it to ultimately transpire in this case upon the trial, if the case ever goes to trial, that the books of account of the pre-existing copartnership are neither in her possession nor under her control and that there are no firm assets or firm liabilities and there is nothing due petitioners from the respondent. The taking of an accounting to secure that result would hardly conform to the concepts of the rule of forum non conveniens. The paucity of the allegations of the bill in the absence of essential allegations entitling the petitioners to seek the intervention of the equity courts of Hawaii would seem to indicate that this respondent is being harassed and annoyed to no good purpose and the Territory should be protected upon the showing made from assuming the expense of litigation by nonresidents that promises no fruitful result.