149 F. 299 | U.S. Circuit Court for the District of Western Washington | 1906
Preliminary to the consideration of the main controversy, the court must dispose of the defendants’ contention that the United States commissioner at Nome, in the exercise of the powers of a probate court made an order of distribution of the estate of E. E. Eeidler, which is a final determination of the rights of
Were the Eeidler brothers copartners in the business of the Progresso Trading Company at the time of the death of E. E. Fiedler? That is the main question in this case. The defendant E. J. Eeidler is probably the only living witness who actually knows the facts. It is denied that he is a competent witness to give evidence, adverse to the administratrix of the estate of E. E. Eeidler, relating to transactions with the deceased; but his testimony, if admitted, would be superfluous. I say this for the reason that the facts and circumstances proved by competent and disinterested witnesses lead necessarily to the conclusion that there was a partnership commenced and carried on in the year 1900, and continuously thereafter until E. L. Feidler died, and in deference to the decision of the Circuit Court of Appeals for the Ninth Circuit in the case of Rush v. Lake, 122 Fed. 561, 58 C. C. A. 447, I would be constrained to decide that the partnership did exist, even if F. J. Eeidler should testify positively to the contrary. To fairly appreciate the opinion of the Circuit Court of Appeals in the case referred to, it should be read in connection with the opinion of the lower court reported in 111 Fed. 893. The facts and circumstances of this case, briefly stated, are as follows': Previous to the year 1900 E. J.. Eeidler commenced trading and dealing in merchandise under the name and style
There is not a scintilla of testimony, by any witness claiming to know the facts, tending to prove that at any particular time or place there was a dissolution of the partnership or a severance of interests, and there is no evidence tending to prove that there was any public announcement of such dissolution or severance. The negative evidence relied upon by the defendants is mainly the testimony of witnesses acquainted with the Feidlers and the business they were engaged in, who say that they did not know that the Feidler brothers were partners; that subsequently to 1901, and until his death, E. L. Feidler alone appeared to be sole manager of the business at Nome, and testimony to the effect that the deceased at different times subsequent to 1901 said that he was sole proprietor of the Progresso Trading Company, and that he was paying his brother for his services as purchasing agent; but all such statements by E. L. Feidler, if made, are incompetent, for the reason that they were not made in the presence of F. J. Feidler, and are not shown to have been communicated to him, nor that he at any time previous to his brother’s death knew that such statements had been made.
F. J. Feidler’s share of the assets which have come into the hands of the other defendants exceeds in amount the judgment recovered by the complainant, and I direct that a decree be entered in his favor for the full amount of said judgment, with interest and costs.