In re Ponzi

268 F. 997 | D. Mass. | 1920

MORTON, District Judge.

So far as Charles Ponzi individually is concerned, his claim to a jury tidal has been waived, and there has been adjudication on the petition against him.

The present proceedings arise on two petitions, in the first of which Ponzi, Dondero, and Bertollotti are respondents, as copartners, and in the second of which Ponzi and Daniels are respondents, as copartners. The learned referee, to whom the matters were referred, has reported in favor of all the respondents, except Ponzi; and the present questions are whether his report should be confirmed, or whether as to some or all of the respondents, other than Ponzi, it should be set aside, and adjudication ordered.

[ 1 ] It is unnecessary to state all of the somewhat complicated facts. Speaking generally, there was nothing in. the conduct of Ponzi’s business which would indicate that it was a partnership. The auditors have found no indication on the books that he had any partners, and there is no evidence that any of the alleged copartners participated in the management and control of the business, or exercised any of the rights of a partner.

The case against Dondero and Bertollotti rests chiefly upon a certificate filed by Ponzi finder the act of 1907 (St. Mass. c. 539). In it he stated explicitly that he, Dondero, and Bertollotti were the persons carrying on the business. Neither Dondero nor Bertollotti signed this certificate; as appears from its face, it was made by Ponzi alone. He testified that he was never authorized to do so by Bertollotti or Don-dero, and that neither of them knew anything about the certificate at the time, or was a partner. This testimony is corroborated by Dondero. As to Bertollotti, there is practically no evidence, except Ponzi’s testimony. He says that Bertollotti was a real person, who had been his landlord in Italy, who would now be about 90 years of age, if living, and whom he supposed to be dead; that Bertollotti knew nothing about the use of his name, nor about Ponzi’s business. On this testimony, Bertollotti’s name, as used by Ponzi on the certificate, was in effect a fictitious one.

[2] It is contended by the petitioning creditors that the established facts show that Dondero, at least, was a partner, and require the rejection of the contrary testimony of Ponzi and Dondero. But the learned referee, who saw the witnesses and heard them examined at much length, believed that on the point under discussion they were telling the truth. His conclusions are entitled to much weight, and the facts relied on by the petitioners are by no means so cogent and convincing as to satisfy me that the learned referee was wrong. I think that the evidence as a whole supports the referee’s conclusions that Ponzi’s certificate did not state the facts, and was a false and fraudulent statement, made for the purpose of avoiding attachment on mesne process, and that neither Dondero nor Bertollotti were partners of Ponzi.

[3] As to the petition against Daniels: There is no doubt that Daniels lent Ponzi a small sum of money near the inception of the enterprise. Daniels made a claim under oath in his bill in equity against Ponzi in the state court that he was in effect a partner, and be accepted in settlement oí that claim a large sum oí money. It does not appear that Ponzi ever acquiesced in the claim. He paid the money; but his purpose in doing so appears to have been to free his funds from the large attachment on mesne process by which they had been tied up. Daniels never conducted himself as a partner, and there is nothing in Ponzi’s testimony or in his conduct which indicates that he believed Daniels to be his partner. The testimony of Daniels is, of course, worthless; but the testimony of Ponzi on this issue is not affected by such inconsistency, interest, and suspicion as that of Daniels. The learned referee believed that Ponzi was telling the truth about it; and there is nothing in the established facts or in the transcript of the testimony which, in my opinion, would justify holding that the learned referee was in error in this respect. Between the alternatives that Daniels was a partner in the enterprise, and that, not being a partner, he falsely claimed to be one, I agree with the learned referee that the latter is more probable. It is possible that there may have been an agreement between Ponzi and Daniels of such character and breadth as to constitute Daniels a partner by operation of law; hut it seems to me that the learned referee was clearly right in holding, as in effect he did, that there was no sufficient proof of such an agreement.

The report of the learned referee seems to me to be a fair and able decision of the questions referred to him; and it is confirmed.

Bet decrees be entered, dismissing both petitions, with costs.