| Fla. | Jul 1, 1862
delivered tlie opinion of the Court.
This case in extenso, was before this Court at a term thereof, held in 1860, and a full history will be seen l>y reference to the report thereof, found in "0 Florida, page 23. This Court then adjudged and ordered the cross hill to he re-instated, the judgment of the Court below sustaining the plea of estoppel vacated, and remanded the cause to enquire from the proofs taken or to he taken, whether the relief prayed for in said cross hill should be granted.
It appears from the record at present before the Court, that replication to the answer of cross bill was subsequently filed, and the cause in its various branches set down for hearing; that afterwards,- to wit: on the 4th day of March, A. D. 1861, a decree was pronounced by the Court iu the words and figures following, to wit;
“ In Leon Circuit Court:
Thomas Orman, surviving partner of Orman & Young, vs. Samuel Stephens, Sheriff and Ex-Officio Administrator of Rufus Sewall, deceased.
Bill in Equity.
Same vs. Same...................
Supplemental Bill,
Same vs. Same ........
Cross Bill, Plea and Answer.
“On this day came the parties in the above causes, and the judgment and decree of the Supreme Court of Florida passed and entered at its January Term, 1860, being exhibited, whereby the judgment and decree of Jackson Circuit Court, setting as a Court of equity, passed and entered on the 9th May, 1846, was reversed, the cross hill re-instated, and the said causes remanded to the said Circuit Court of Jackson county for further proceedings; and it further appearing that these causes were, by an order of the J udge of the Circuit Court of Jackson county, removed and transferred to the Circuit Court of Leon comity, and that they
“ It is further adjudged, ordered and decreed, that the assignment made by Orman & Young to Rufus Sewall, by deed of indenture, executed on the 14th January, be valid and binding upon the parties. It is further adjudged, ordered and decreed that the bond of indemnity executed by Rufus Sewall and E.'J. Bower be valid and binding upon the parties; said bond of indemnity bears date the 14th January, 1829, and is executed to Orman & Young, and that the obligations, covenants and conditions therein contained be specifically performed by the said Samuel Stephens, ex-officio Administrator of Rufus Sewall, deceased, out of the assets in his hands to be administered. It is further adjuged, ordered and decreed, that it be referred to Hugh Archer, Esq., Master in Chancery, to ascertain and tax the damages sustained by the said Thomas Orman, surviving partner of Orman & Young, by reason of the failure of said Rufus Sewall in his life time to fulfil and perform the obligations, covenants and conditions in said bond of indemnity contained, and that he report to this Court without unnecessary delay in order to a final decree.”
The cause now comes to this Court on an appeal from this decree.
The erors sot forth in the petition of appeal are :
1st. “ That complainant Orman was not entitled to any decree of any kind, but his bill should have been dismissed for want of merits, and as being founded in fraud and the
2nd. “ Complainant (Sewall) is, upon the principles of right and justice, most clearly entitled to relief to have the contract rescinded, the bond set aside, and a decree for a large sum of money against Orman. That he is entitled to this on account of the superior assets received on account of extra interest, advances, commissions of 2 per cent, for winding up affairs of the partnership, and his portion of the new firm.”
To a proper understanding of matters in issue, it becomes necessary to set forth in substance the allegations in said cross hill, and the answer thereto. The cross hill alleges that on the 5th March, 1826, the said Sewall and Orman & Young entered into a partnership), (see articles of agreement, 9 Fla. 23;) as per agreement the said Sewall transferred to the firm of Orman & Young the stock of merchandize then belonging to him, which really belonged to the firm of William Hitcliings & Company, their store-houses, ware-houses, out houses, &c., of the value of $9,508.09, and afterwards made advances to and procured acceptances, paid their drafts, &e., amounting to nearly $40,000, as will appear by his account filed therewith, and marked Exhibit E., No. 5.
It further avers, that after tbe said Sewall, Orman & Young had carried on business for nearly three years, under the articles of co-partnership, (see 9 Florida, page 24,) he the said Sewall, through misfortune became deranged in his affairs in Mobile, and was compelled through necessity to look elsewhere for means ; that as the firm of Orman & Young had been prosperous in business, and were also indebted to him in a large amount for advances, lie left Mobile, where lie bad, during tbe existence of tlic firm and up to that time resided, and came to Florida that he might receive the por
The cross bill further alleges that on furnishing this statement, the said Orman & Young proposed to sell their interest of the firm to said Bewail for $17,500, they, said Orman & Young, in payment thereof, to have choice of paper to the
The cross bill further avers that after some time be discovered from an examination of tbe books that lie had been grossly imposed on; that tbe statement made out and banded him by said Orman & Young was incorrect and contained palpable mistatements. The cross bill charges that the notes were set down in said estimate at $28,400, and a list thereof accompanied said statement, which is described as being marked O. No. 3.
Tbe complainant in the cross bill here sets forth the following errors which he has discovered in the list of notes, to his prejudice:
1. That only $275.53 were due from James Webb, instead of $769.47 as represented.
2. That only $757.63 were due from Sears Bryan, instead of $835.84 as represented. • •
3. That only $54.98 were due from Richard L. Watson, instead of $93.75 as represented.
4. That only $55.27 were due from Sion Smith & Joseph Russ, instead of $816 as represented.
5. That only $242 were due from John Register, instead of $536.80 as represented.
7. That only $95 were due from Graham & Pope, instead of $110.80 as represented.
8. That only $16.70 were due from Thomas Nalls, instead of $26.70.
9. That only $1,192.10 were due from Brown & Lott, instead of $1,342.10 as represented.
10. That two notes were included in said list from Sims & Murphey for $200, which ought not to have been there.
11. That two notes of J. B. Bryan and Thomas M. Bush were included in said list, which in justice ought not to have been there.
12. That Benjamin Hays’ note for $50 was not delivered to the complainant by the said Orman & Young. That the above mentioned notes were subject to credits which were not disclosed nor made known to said Sewall, making the differences as stated amount in aggregate to $2,013.15.
13. That the accounts of the firm were represented at $16,600, when they were only $13,717.50, including the accounts at the Bay and the memorandum book accounts, which were not included in the estimate, making an error in this respect of nearly $4,000.
14. That the goods on hand were put down at $7,000, when it should have been but $6,000.
15. That the cotton on hand was represented to be worth $4,000, when it was worth only $2,559.96.
16. That corn, pork, &c., was estimated at $1,000, when it should have been $800, making a difference of $200 in that item.
17. That two negro boys were put down at $900, which were purchased for $460.
18. That the debts owing by the firm were put down to $24,000, a much smaller sum than was actually owing.
Attached to the cross bill, it is averred is an exhibit marked II, No. 8, setting forth a statement of the difference between the said estimate exhibited to said Sewall by said Orman & Young, and what ho said Sewall considers a true state of tlie concern at the time settlement was made. The cross bill further alleges that shortly after said settlement, the said Orman & Young, perceiving errors in their favor, brought them to the notice of him, Sewall, for correction, and lie, Sewall, acceded to them, but that when he, Sewall, required an adjustment of the numerous errors committed to his prejudice as aforesaid, they refused. The cross bill requires the defendants to auswer the allegations thereof, and prays that the said agreement entered into (see 9 Florida, page 28,) between the said Sewall and said Orman & Young, for the adjustment of their partnership concern, be set ande and held for naught, and the bond given by said Sewall and said Bower to said Orman & Young be annulled and given up, and an account taken, or that the errors and mistakes, &c., committed by the said Orman & Young in their said estimate and representations be corrected.
To this cross bill, the defendants Orman & Young, on the 18th December, 1830, plead to part and answer to the residue. As the plea has been overruled and no question arises under it before this Court, it is unnecessary to -set it forth. The said Orman & Young, in answering, say, that in December, 1828, the said Sewall did come to Florida, with a view, as they then supposed, to a settlement of all matters and things of a commercial nature between them ; that the mercantile business of Orman & Young, previous to 7th March, 1828, and also that since that date, was not in such a condition as to admit of a statement approaching to any thing
The said Orman & Young positively deny that anyestimate or statement was submitted by them to said Sewall as accurate or correct, showing the condition of their business, or that he was informed by them that the estimates or statements referred to in his bill were accurate. Thomas Or-man avers that the statement made out by him was made out for his own information, and not with a view to direct or govern the said Sewall in his conduct. Andrew Y oung says he knew nothing of them until he saw them in the store on his arrival from, the bay, and that he objected to Sewall’s having them, as they were then negotiating.
The defendants Orman & Young further say in their answer that said Sowall enquired for himself, examined the books, and had access to them when lie wished; that all calculations and- estimates were general; that no trick or concealment was used to induce said Sewall to purchase, &e. They further aver that the business was carried between them in the way of bargain and sale, in which for an aggregate amount they sold the aggregate of the co-partnership property, on which sale, a balance of each member’s share of the concern was not attempted to be ascertained.
An amended answer to said cross bill was put in at June Term, 1 S31.
This answer admits the origin of the partnership as alleged in cross bill and articles of agreement, and also ad*
Further answering they say, 1st. That so far as relates to the several errors and deficiences pointed out and special! v charged in the cross bill, as far as they recollect, or belisi e, said Sewail was apprised that James Webb was em.irl.ed to a credit for corn and cotton, wliich they'believe was entered on the books about tbe first of January, 1820
2d. That the errors -charged in Sears Bryan’s account will he explained by adding thereto the account of Bryan & Marshall, included therein.
3d. That Watson was credited on his note while the trade was negotiating.
4th. That the amount dne from Sion Smith and Joseph Buss was by note for §400, dated 23d December, 1826, due one day after date, drawing interest at tbe rate of fifty per cent, per annum, till paid, and they aver that said Sewail was informed and knew previous to said agreement that said Buss had delivered 28 or 30,000 lbs. seed cotton, wbieb lie insisted should be credited on tbe note as per agreement claimed by said Russ to have been made with said Andrew Young, hut which agreement was denied hy said Young, said Young claiming that the cotton should he credited on an open account on the books due and owing the firm by said Russ.
5th. They further say that the claim against John Register was in a judgment in Alabama, which judgment, by miscalculation of tbe Attorney, had been taken for too much, and they aver this was at the time of said agreement explained to and known by the said Sewail.
7th. The debt against Graham & Pope they say, was originally a judgment for $93, and that the interest up to the time of the agreement would be the amount stated.
8th. That Thomas Nall had done some work for the firm, and, if not otherwise settled, was entitled to a credit therefor.
9th. That a draft had been drawn on Brown & Lott for $50, in favor of E. Chambless, after the estimate and before the sale; that they had no recollection of any other credit to which they were entitled.
10th. The notes of Sims and Murphy they say, were obtained before the sale to complainant, and were with the sale transferred to him.
11th. The notes of T. M. Bush and J. B. Bryan they say, were for the hire of the ntígroes of the firm, and which they say said Sewall knew at the time.
12th. They admit that Benjamin Hayes’ note was not delivered to said Sewall, and allege it was because they, the said Orman &,Y°ung, took it as part of the $17,500 purchase money.
13th. In regard to the aggregate or' sum total of open accounts, as stated in said estimate, they say, the said Sewall did not rely upon that statement as accurate; that it was made out in haste, the books being behind hand, and was not made out for the information of Sewall, but for themselves, and deny that there was any imposition upon the said Sewall intended. They also deny that it was the understanding that the amount of accounts at St. Andrew’s Bay, and memoranda accounts, should be or was excluded in said general statement.
15th. In relation to the cotton, the say the books did not show the amount or cost of the cotton; it was dispersed
16th. The corn and fodder they say was estimated at its value at the time of sale, and as a gross estimate it is believed to be nearly correct.
17th. They admit the two negroes were purchased at the sum of $160 as alleged in the cross bill and they were in said statement estimated at $900, but avers that the negroes were worth the nine hundred dollars to the firm, and said Sewall did not object to giving that sum.
The answer to said specific charges further states, that they stated to said Sewall all the debts due from the firm as. far as they were known to them and recollected.
The said Orman & Young deny that the debts of said firm in Jackson county were improperly rated at $5,000, for bad and doubtful debts, and aver that they have no doubt that sum was abundant to cover all losses and errors.
The answer admits that there was a small account of errors on both sides, and said Sewall was called on to adjust them.
And the said Orman & Young in their said answer positively and expressly deny all manner of fraud, and imposition and deceit, charged against them in said cross bill.
The following is the testimony in the case, viz :
Testimony of "William Taggard, of the firm of William Taggard & Co., witness for Orman & Young, taken 30th October, 1830;
1st. Do you know the parties ?
Ans. To the first interrogatory he answers and says, that he knows the plaintiffs and the defendant Sewall, but that he has no personal acquaintance with the defendant Bower.
Ans. The plaintiffs, Orman & Young, were indebted to tbe firm of William Taggard & Oo., of which deponent is a member, on the 14th of January, 1829, in the sum of fifteen hundred and eighty-four dollars, or thereabouts, of which amount four hundred and thirty-four dollars, or thereabouts, was due previous to tbe shipment of the schooner Carroll, and the balance of said amount, viz : eleven hundred and fifty-four dollars, or thereabouts, was due on account of said shipment.
3d. If anything was due you at the above date, state if the same has not been paid, or some part, and what part ?
Ans. Nothing has been paid by tbe said parties on account of said debt, but that this deponent has received from insurance companies nine hundred and sixty dollars, or thereabouts, on account of losses on shipments by the schooner Carroll, which shipments were made on account of Orman & Young, to deponent’s information and belief.
4th. Was the amount due by said firm assumed by any one, and if by Sewall, did you receive bis letters to that effect ? if so, annex the original, or, if that be lost, a copy, and state date, &c.
Ans. At tbe time of contracting the whole debt due deponent, the defendant, Sewall, was a partner in the house of Orman & Young, and deponent looked to said firm for payment of bis debt; that this deponent, in the latter part of 1828, or the early part of 1829, sometime after the debt due deponent, on tbe 14th of January, 1829, was contracted, received a letter from the defendant Sewall, stating that he
5th. Ii any part of said demand lias been paid, please state who has paid it, and at what time the same was paid, and to wliat part of the demand you applied the payment ?
Ans. Nothing lias been paid, and nothing received on account of deponent’s debt, except the amount stated above as received from the underwriters, which has been received within a few weeks past, and has been credited by the deponent to the account of the shipment by the schooner Carroll.
Testimony of Charles A. Sewall, taken 24th August, 1831:
1st. Was you in New York in October, 1828, purchasing goods ?
Ans. I was.
2d. Was you personally acquainted with Mr. Taggard of the house of William Taggard & Co., merchants of New York ?
Ans. I ivas.
3d. Did you know of an order or memorandum sent William Taggard & Co., by Orman & Young, for a quantity of goeds ? if yea, state the circumstances.
Ans. While in New York I heard William Taggard, oí the house of William Taggard & Co., observe to Rufus flowall, “I have received an order from Orman & Young, enclosing a memorandum, of goods which they wish meto purchase. . I have no funds of theirs noiv in my hands, and you can take the order and make the purchase.” And to my knowledge, Rufus Sewall did make purchases of the order.
Ans. The goods thus purchased were shipped on board the schooner Carroll, which vessel, meeting with some disasters out, I deemed it prudent to abandon my interest to the xmderwritbrs, and Rufus Sewall likewise abandoned the in-* terest of Orinan & Young.
5th. Is the annexed statement of $957.41, the balance due Rufus Sewall on the transaction, and the account of William Taggai'd & Co., which is likewise hereunto annexed, to the best of your knowledge correct ? viz:
Messrs. Orman & Young,
To Rufus Sewall, Dr.
October, 1828, for merchandize purchased in N eW York of O. & O. Waddel,.... . .......$ 664.80
Of Wm. Bryan,............\ .........312.28
Of Spear, Carlitor & Co.,.................... 904.29
Of J. & L. Brewster,..............245.69
$2,127.06
1,169.65
Interest on balance, 12th May-,................ $ 957.41
Messrs. Orman & Young,
To Wm. Taggard & Oo., New York, Dr.
October, 1828, for my acceptance for merchandise, purchased as per your order of Brown & Humphreys,............................... $ 226.69
Of Wm. B. Corgro,....................... 291.30
Of Wm. Todd,................................ 259.32
Of Blackwell & McFarlan....... .............. 259.32
$1,042.52
967.63
$ 74.89
Airs. To the best of hit knowledge the statement of both accounts is correct, but I know not!ling respecting the charge of commissions and interest, which I think ought to be made.
6th. Did you not consider Bufus Sewall as the principal of the eon cera, of Orman & Young ?
Ans. I did-.
7th. Is the annexed a correct extract from a letter written by William Taggard <& Co., to Bufus Sewall?
(Remark by the Court; this extract referred to is not found in the record.)
Ans. It is.
Testimony of Addison Man dell, a witness for Orman & Young, taken before Commissioners, 22d June, 1831:
Interrogatory. Please state whether you had for collection a debt against complainants in favor of Florence & Co., and if you applied to defendant for payment, and what was his answer, and state the time ?
Ans. He had a demand in his hand in favor of J. L. Florence, for live hundred and some odd dollars, against the, plaintiffs, upon which suit was brought and money collected. At the time he called upon Mr. Orman, one of the firm, he informed him that it was to be paid by Sewall. lie after-wards on the same day saw Sewall, who stated he was to pay it, but Orman & Young bad not acted right with him and he should not do it; they might pay it, and he would have the use of the money until it could be collected : the time was May, 1829, or shortly thereafter, but not later than June.
Interrogatory. Did defendant purchase of you a tract of land? if so, state with what funds you were paid, and describe the land.
Ans. Rufus Sewall purchased from him the South-west quarter of Section five, the North-west quarter of Section eight, the East half of the Nortli-east quarter of Section six, the East half of the South-east quarter of Section six, all of Township five, Range eleven, N. and W., for which the said Sewall gave between twenty-eight hundred and three thousand dollars. Eive or six hundred dollars, as this deponent believes was paid in cash, and his own paper due to Orman & Young, the balance was paid in notes and accounts due to and given to Orman & Young. This deponent does not recollect the precise amount of the notes he received, but according to contract they were selected from the debts due to the late firm oí Orman & Young.
Testimony of Ebenezer J. Bower, taken before Commissioners at the instance of Orman & Young, on the 20th June, 1831.
Interrogatory. 1st. Do you know of the trade between the above parties in relation to the stock of goods, and sold by the complainants to defendant? if you do, please state, 1st. Whether defendant frequently counselled and advised with you in relation to the trade, in relation to the general character of the debtors, and the value of the concern in the aggregate.
Ans. I do know of the trade between Orman & Young and Rufus Sewall, for a stock of goods and a quantity ol other property, to a large amount. The goods were estimated in the statement hereunto annexed, in the handwriting of Rnfns Se-wall, at six thousand dollars, though I believe they were estimated by Orman & Young at seven
2d. Did you consider the trade as a lumping one, or as a trade for specific articles, and state what was defendant’s view of it, so far as you could judge by his words and general conduct whilst the trade was negotiating, and at the time 2
Ans. I considered the trade a lumping and general one, and not of specific articles ; no inventory was taken of the goods. Said Sewall was evidently dissatisfied with the trade while it was negotiating, as he expressed to me at the time, but said it was the best he could do; that Orman & Young had a large amount of his property in their hands which he must have the control of. After the trade was consummated, he seemed to be better satisfied.
3d. Please state, and particularly describe the property received by Sewall from complainants, viz: The land and negroes each, what belonged to the firm of Orpaan & Young, as all subsequently acquired with the funds and debts, and means of the firm ? I
Ans. The property sold by plaintiffs to defendant consisted of a stock of goods, (before described,) a lot of land adjoining Webbville — tenor fifteen acres — on which stood a cotton gin house and several other log houses; also a quantity of corn, bacon, cotton, two negro boys, onemegro man, one negro woman and child, two or three horses and mules, a storehouse in "Webbville, a store and warehouse at St. Andrew’s Bay, besides a large amount of notes, accounts and
4th. State whether Sewall was informed of the situation of Thomas Russ’ notes and amounts, and the judgment against Register, and also the Russ and Smith’s notes, and state what was their situation, and if Sewall knew it?
Ans. I recollect having a conversation with said Sewall .immediately before or after the trade, (I think it was before,) on the subject of Thomas Russ’ note, and Sion Smith’s and Joseph Russ’ notes for four--dollars, at fifty per cent., in which 1 told him all I knew about it, and particularly stated an understanding between said Russ and Young in the fall preceding, about Russ’ cotton, whicli, according to tlie understanding, was to be applied to the payment of this note. After Russ had delivered the cotton he applied to said Orman for a receipt, which he, said Orman, wrote, and also a note for the amount of said Russ’ account, and then sa:d to Russ, if yon will sign the note I will sign the receipt. Russ declined signing the note, and the business ended. Mr. Orman then attached both blank note and receipt to the leaf of tlie ledger containing said Russ’ account, and all remained in that situation till the aforesaid trade was consummated. I don’t distinctly recollect of informing Mr. Sewall the situation of the judgment against John Register. I
5th. Relate all you know, which will in any way benefit complainant • •
Ans. At all times when. I was at filestore of said Orman & Young, said Sewall had free access to all the books and papers belonging to the concern. On the 7th of March, 1828, said Orman commenced taking an inventory of the stock of goods on hand, and from that time changed their business entirely. The firm, as it had existed, wras considered by the said Orman & Young to be dissolved, and Rufus Sewall was considered no longer a partner. Their partnership having expired on that day, according to their agreement, the business was afterwards kept separate and distinct from that of the old concern. Sewall was at 'Webbville in March or April of the same year, when he attempted to make a settlement with Orman & Young, who declined doing so, because (as they informed me,) Mr. Sewall had their notes to a large amount which he was not prepared to give up. During the time, and afterwards, when said Or-man & Young were absent, I had charge of the concern. Said Sewall had free access to the books and papers, and had a fair opportunity to examine and calculate for himself. One of the letters hereunto attached is in the handwriting of Rufus Sewall, the other is my answer to the same. I was clerk for Orman & Young for about two years, during which time I never discovered anything that led me to believe that they were disposed to wrong said Sewall' in the least amount. At the time of the trade I supposed five thousand dollars were sufficient to cover all bad debts and all amounts due by said concern in Washington and Jccohson counties.
Hallowell, 29th July, 1828.
E. J. Bower, Esq. — Dear Sir : I enclose a letter to Messrs, Orman & Young, which I wish you to examine, also the agreement entered into by Orman & Young and myself, which Mr. O. will send you for inspection. Either W. or myself have made some grand error, or else I have made some mistake of Mr. O.’s meaning. I shall proceed to New York in a day or two, I will then forward you my power of attorney. I do not know but it will be well enough to constitute you and Maj. Webb my attorneys. At any rate, I only want precisely what the agreement gives. If I have wrong impressions or incorrect views, certainly unprejudiced men can determine. All O. & Y. have is now due to me, and the amount is much too large for me to lay out of. It is on this account, I think, however honest O. & Y. may be, it is very proper I should have some uninterested person or persons to look a little to my interest. I shall write you again from New York. In the meantime believe me,
Y ery respectfully,
RUFUS SEWALL.
Notes and accounts,.........................$17,947.62
do. do. '......................... 16,491.16
Aug.,...................................... 1,660.00
Goods,.................................... 6,000.00
Cotton,..................................... 4,000.00
Gin house,................................. 1,000.00
Cash.................... 1,000.00
Gyves,..................................... 1,800.00
$58,868.78
Bad and doubtful debts, R. S., $19,800.00
II. S.,...................................... 5,250.00
N. ().,..................................... 3,200,00
N. Y.,..................................... 450.00
$28,700.00
Trial January 1st, 1829.
Orman & Young’s indebtedness is above in this way, according to their own accounts.
Dr.
One note due on the 1st February, 1828,..........$ 2,500
One note due on the 1st May, 1828,.............. 1,500
One note due on the 1st April, 1829, ........... 500
On demand,........................ 11,659
On demand,.................................. 2,535
On demand,....................... 50
On demand,................................... 3,180
Mr. Sewall’s acceptance,........................ 5,200
Payment, ..................................... 3,000 •
Deceived payment,................. 95
- — -,.............................. 15,434
My account in Boston,.......................... 3,200
Since in cash paid,............................ $49,232
Or.
By proceeds of bales of cotton,..................$ 5,500
By proceeds of 320 bales of cotton,............... 9,497
Draft on New York,............................ 960
115 bales shipped to Liverpool,.................■. 4,200
164 bales shipped to New York,................. 5,200
Cash,......................................... 2,000
Freight,....................................... 615
$28,492
$28,492
26,831
Being........................................$7,500
One-third profits of $28,331 is the whole business.
Yours, etc., R. SEWALL,
ANSWER of BOWER TO SEWALL.
Webbville, Sept. 10th, 1828.
l)mr Sir: I have delayed writing you until I could see' Judge Wéb'b 'npoli the subject of your letter, which I was not able to do until yesterday. He informed mie that he was entirely ignorant of the agreement between you and O. & Y.; that he should leave here to-mo'rrow for Key West, and should not he able to render you any service in the settlement of this business.' Orman, in the meantime, has protested against making any settlement with any one but yourself, and lias written you on the subject. I have no doubt of O. & Y.’s intention to do yon strict justice. I will, however, as requested, attend particularly to your interest in the business.
Business has been tolerably good this summer. We have sold since the 7th March, upwards of $11,000 worth of goods. Please remember me to your brother, and tell him I shall look for him in October.
Yours sincerely,
E. J. BOWEE.
Testimony of Ebenezer J. Bower, in answer to interroga* tories propounded before the Auditors, 23d August, 1831 i
Interrogatory 1. Were you a clerk for Orman & Young in their store at Webbville ?
2d. IIow long- did ydú act in that capacity ?
Ans. About two years.
3d. Hid you act as salesman and principal book-keeper while you were with Orman & Young ?'
Ans. I did,
4th. "Were you left for months in the entire control and discharge of the business at Webbville ?
Ans. I was.
5th. Do you know whether the business was managed for the best interests of the concern ?
Ans. It waSj as well as I could judge.
6th. Was Orman vigilant and attentive to the business at all times 5 and did he have to attend to and the principal business abroad in purchasing goods, &e.
Ails, He was, and did.
7th-. Do you or not believe that the business was well and faithfully conducted at St. Andrew’s Bay by Young, except when his health was so bad that he -was not dble to attend to business; and then did Orman & Young have in their employ Silas Dinsmore as clerk, who assisted at St. Andrew’s Bay during the illness of Young, until in December, 1827, or January, 1828?
Ans, I do, and they did.
8th, From all you knew, was the business honestly, faithfully and correctly managed by Thomas Orman and Andrew Young, for the best interests of the concern ?
Ans. It was.
9th. Did you know either Thomas Orman or Andrew Young to make use of the money, credit, or means of the concern, in any -way to effect or promote any individual transaction, or to secrete or dispose of anything that be
Ans. I never did.
10th. Were the books ofJRufus Sewall’sbusiness done at St. Andrew’s Bay in 1825, and also the books of William Hitchings & Co.’s business done at St. Andrew’s Bay and Webb-ville, in 1825 and 1826, by the purchase made of Sewall, and the accounts in them due, and the notes, judgments, &c., purchased of said Sewall, as appear by the list here shown and attached, always considered the same in relation to Orman & Young’s business as any of the business of said firm, and conducted in all instances, in settlement or arrangement with individuals, precisely the same as any of their accounts, notes, judgments, &c. %
Ans. They were.
11th. Did Orman & Young close doors and commence taking stock at Webbville on the 7th day of March, 1828, and continue until they had taken a faithful account of everything in the store, or when ?
Ans. They did.
12th. Did Orman & Young, in your presence, or did you count the cash they had on hand on the 7th day of March, 1828, and take an account of it, and also keep an account of all that was received in all business previous to the 7th March, 1828 ?
Ans. I don’t recollect of counting'the cash or seeing it counted, but presume it was counted by me or in my presence, as a very particular account of everything was taken at that time. A regular account was always kept of cash before, as well as since the 7th March, 1828.
13th. Was the account of stock taken at Webbville entered in a book for that purpose, and the original sheets upon which it was taken rolled up together and carefully
Ans. I don’t distinctly recollect on what the account of stock was first taken, but it was copied from the original in a book.
14th. Was the total amount of stock taken at St. Andrew’s Bay by Young received at Webbville soon after the 7th March, 1828 ; and is not the account here attached, in the handwriting of Young, to the best of your knowledge and belief!, the same in amount and substance that was then received ?
Ans. I do not recollect seeing the inventory of stock at St. Andrew’s Bay taken by Mr. Young.
15th. Did Orman & Young direct you, Mr. Bower, to take an account of all the notes, and include the interest to 7th March, 1828, and did you do it ?
Ans. They did, and I did.
16th. Did Orman & Young direct you to make out the individual accounts, and take an account of all that was due them on their books at Webbville on the 7th March, 1828, and did you do it ?
Ans. They did, and I did.
17th. In closing the business done previous to 7th March, 1828, did not Orman & Young direct, you to keep it separate and distinct from the business they were doing after said 7th March, 1828, and did you do it, and was it not generally done ?
Ans. They did, and I did, and it was.
18th. Did you understand from Orman & Young that the business done after said 7th of March, 1828, was altogether on their own account, and that, in the former business, Kufus Sewall was concerned with them ?
Ans. I did.
19th. Did Orman & Young open a new set of books
Ans. They did.
20th. What was' the amount of sales and merchandise made by Orman & Young after the 7th day of March, 1828, to the time they sold out to Rufus Sewall, and was their business better then that it had been for the same month in any previous year ?
Ans. The amount of sales of merchandise, from the 7th March to August, 1828, was about eleven thousand dollars better, I think, than they had been in the same months of any previous year. The business was very good to the first of January, but I have no recollection as to the amount of sales. The merchandise account on the ledger will show the amount.
2'lst. Did you understand from Rufus Sewall, when he visited Webbville in April, 182:8, that his object was to make a settlement with Orman & Young,, and close the business of the old concern ?
Ans. I did.
22d. Did yon understand from Rufus Sewall, or from Orman & Young, that the reason a settlement was not then made was, that Rufus Sewall had not with him the notes of Orman & Young, aird certain other documents that were necessary in effecting a final settlement, or what were the circumstances ?
Ans. I did from Mr. Orman.
23d. Did you hear Orman & Young tell Rufus Sewall in their counting room in Webbville, in 1828, that, as he was not here at the time the co-partnership- expired by its limitation so as to buy or sell by the parties, agreeable to the
Ans. I have no recollection of these circumstances.
24th. Did you, then, in April, 1828, hear Orman & Young and Rufus Sewall endeavoring to trade for Sewall’s interest in the old concern, and did you hear Rufus Sewall offer to take for his interest in said concern, six thousand dollars, and did yotr hear Orman & Young offer him five thousand dollars, and, after some talk, dropped the subject and did not trade ?
Ans. In April, 1828, Orman & Young and Rufus Sewall were endeavoring to trade in some way, but heard no offer or proposition, except by Mr. Sewall who made some figures on a piece of paper and held it up to Orman & Young, and said he would give that, meaning, I suppose, the amount stated in figures. This took place the night after the day he arrived at Webbville, and it was the first circumstance that led me to believe that Rufus Sewall was concerned with Orman & Young.
25th. Did Orman & Young, in April, 1828, pay to Rufus Sewall two thousand dollars, as per his receipt, and did not yon let him have of money that was collected during Or-man’s absence to New Orleans, in April or May, 1828, six hundred and thirty-five dollars, as per his receipt ?
Ans. I don’t now recollect of Orman & Young paying R. Sewall, in 1828, two thousand dollars, but distinctly recollect of paying him myself about the amount stated in the question a few weeks afterwards, when Mr. Orman was absent to New Orleans, for which I believe I took bis receipt. The book9 will show the precise amount.
26th. "While Orman & Young and Rufus- Sewall were en
Ans. During Mr. Sewall’s stay at Webbville, in April, 1828, as well as at all other times when I was in the store, he had free access to the books and papers belonging to the concern. lie was there a day or two in Mr. Orman’s absence to New Orleans, but whether he examined or made any calculations I do not recollect. Mr. Sewall and myself frequently conversed upon the profits of the business previously clone by Orman & Young, and the prospect of doing a profitable business by a separate concern, to be established at Webbville, which was then contemplated.
2Yth. What did Rufus Sewall say to you respecting the old business of Orman & Young, and what did he say to you respecting the then business of Orman & Young ?
Ans. I don’t recollect of his saying any thing particularly more than what I have stated.
28th. During Orman’s absence to New Orleans, in April, 1828, did or did not Rufus Sewall say to you that he must have some business going on in this section of the county, and with that intention make a proposition to you to join him and his brother Charles A. Sewall, in business, he furnishing all the capital ?
Ans. Rufus Sewall did make a proposition to me, in 1828, to join his brother, Charles A. Sewall, in business, he
29th. Do you know that when Orman & Young made out their memorandum for goods for fall aiid winter stocks, that that memorandum was forwarded to William Taggard & Co., New York, to be filled by them, and though Or-man & Young knew that Rufus Sewall was or would be in New York, they did not address him on the subject?
Ans. Orman & Young did forward to William Taggard & Co., in the summer of 1828, an order for fall and winter goods, which they deebmed stipplymg, and this circumstance was attributed by Mr. Orman to some unfavorable representation made to them by Mr. Sewall, who was then supposed to be in New York. Orman & Young did not, to my knowledge, address Mr. Sewall on the subject of the order.
30th. Did Rufus Sewall write to you in July or August, 1828, requesting you to act as his agent, and who might, if necessary, act in conjunction with James Webb, Esq., in effecting a settlement with Orman & Young, and is not both his letters to you and your answer in return, now attached to your answers to the interrogatories now filed in the clerk’s office of the Superior Court in this county, in the case of Orman & Young vs. Rufus Sewall and E. J. Bower, in Chancery; and is not also the estimate or trial sheet attached thereto, in the handwriting of Rufus Sewall ?
Ans. He did. They are I suppose, and it is.
31st. Do you know that after Rufus Sewall returned to Webbville, in December, 1828, many attempts were made to effect a settlement of the business of Orman & Young and Rufus Sewall, between themselves, all without success, and after laboring two or three weeks, ended without doing any thing ?
Ans. I do not know it but so understood it from Mr. Sewall.
Ans. I know but little tlmt’took place While the negotiation was pending, except what I learned froin Rufus Sewall. He informed life of their progress from time to time, and consulted me on the business generally, and on particular points wherein he entertained doubts, and on which he wras ignorant. I don’t know whether Rufus Sewall had free access to the books, papers, &c., during this time, as I was-seldom, if ever, in the store, but heard no complaint of Mr. Sewall of the contrary. I don’t recollect that he consulted me as to the value of the property, but believe he did.-
83d. Was there any inventory of the goods that Orman & Young had on hand taken, or were they put down at a lump, without measuring, weighing, &c., at the time they sold out to Rufus Sewall, and was it the same with cotton, corn, bacon, horses, mules, negroes, gin-house and lot, &c. ? Was or was not the foregoing put down at their estimate value at the time the sale was made, and did Rufus Sewall consult you upon all these subjects %
Ans. No inventory of the stock on hand was taken at the time of the trade, as I ever knew or heard of from either
34th. Do you or do you not know, that from the situation of the books, then being behind in posting, &c., that it must have been almost impossible from their situation and the extent of business and amount of debts due to Orman & Young to hate got any thing like accuracy in the amounts in the time this trade was in its negotiation to completion ?'
Ans. It would have been extremely difficult, if not impossible to arrive at anything like the correct amount due Orman & Young iii the time the trade was negotiating.
35th. Did you or not hear Rufus Sewall say that he did hot expect anything like accuracy in this lumping business, arid that Ornian & Young had proposed to throw in five thousand dollars to cover all bad and doubtful debts, and also all errors that might or could possibly arise in the hurry in which the estimates were made, as well also as to compensate for collections.; and do you believe to the best of ydur knowledge, thatthe sum of five thousand dollars would cover all bad and doubtful debts, errors, &c., that have arisen from the biisiness?
Ans. I don’t distinctly recollect of hearing Rufus Sewall say anything on these points, but have always understood,- and have not heard it contradicted by either party, that five thousand dollars were thrown in to cover bad debts, errors and small amounts due by the concern, which sum 1 thought amply sufficient for that purpose, and from all I know, I believe it will be sufficient.
Ans. I understood from both parties that the trade was a general and lumping one, and that the estimate was made out for the purpose of arriving as near to the value of whole concern as they could, without measuring, weighing or counting any thing.
37th. Did Orman & Young make and execute their bill of sale or transfer, to Rufus Sewall, of the notes, accounts, goods and property of any description owned and claimed by them, excepting the amount of seventeen thousand five hundred dollars, and the amounts of their individual accounts in the books, without claim, drawback or recourse on them in any way, and did you subscribe as a witness to the same, and when was said bill of sale or transfer made, executed and delivered ?
Ans. They did. I was a witness to the same, as well as I recollect, on the 14th of January, 1828, when it was also delivered.
38th. Are the books and papers that Orman & Young had in their possession at the time the sale was made, and that were transferred over to and left in the possession of Rufus Sewall, that are material, now here before the auditors, and state what are absent ?
Ans. I believe all the books belonging to the concern of Orman & Young were delivered up to R. S. Sewall at the time of their trade, some of which I have seen in the possession of the auditors, viz: the cotton-book, kept at St. Andrew’s Bay, and the last note-book kept at Webbville.
39th. Do you know that there was the sum of thirty seven dollars or thereabouts, short of the amount that Orman & Young were to receive, on comparing-the notes and accounts
Ans. On the 14th January, when the papers were signed and exchanged, Mr. Orman observed to Mr. Sewall that the notes, accounts, &c., which he had received, fell short of the amount agreed upon, by about thirty-seven dollars, which Mr. Sewall said he would settle at any time.
40th. Do you know that in II. Haley’s account, taken by Orman & Young, they took the whole amount of the debt, without deducting from it the credit that stood fair upon the ledger ?
Ans. I do ; and the credit was thirty dollars as well as I recollect.
41st. Do you know that Orman & Young credited John Brett, sr., on his note that they had taken for cotton that was delivered after the sale of the gin-house, and how much, and that the credit was then made because it had been the previous understanding with said Brett, that what cotton he delivered was to be applied on his notes ?
Ans. I have but a faint recollection of this circumstance, and believe I merely heard of it.
42d. Do you know that Rufus Sewall purchased from James Webb, land, negroes, hogs and other property of large amount, and paid for the same out of notes, accounts and means that he received from Orman & Young? If so, please state the amount and describe the land, negroes and other property so purchased by said Sewall.
Ans. I was informed by Rufus Sewall that he had purchased from James Webb a quantity of property which I cannot particularly describe, consisting of about three-quarter sections of land, eleven negroes, cattle, hogs, horses, mules, wagons, fanners’ utensils, bacon, &c., to the amount of six thousand five hundred dollars, for which he paid him mostly in the proceeds of the concern of Orman & Young.
Ans. I have seen in the possession of Charles A. Sewall, a deed of land, or bill of sale, (I did not particularly examine it,) made by James Webb to Rufus Sewall, John O. Sewall and Charles A. Sewall, jointly, (to the best of iny recollection.) I do not know when the sale was made or titles executed, but believe it was in February or March, 1830.
44th. Did Rufus Sewall purchase from Wm. J. Watson and James F. Russ, land and other property of large amount, and pay for the same out of the notes, accounts and means he had received from Orman & Young? If so, please state the amount and, describe the land and other property, if any, and when was this trade made and titles executed.
Ans. Rufus Sewall did purchase from William J. Watson about three quarter sections of land, I think in January or February, 1829, for which he paid about three thousand dollars in the means of the concern of Orman & Young. The titles were executed sometime after the trade was made. I also purchased, .as agent for Mr. Sewall, about forty acres .of land .of James F, Russ, on which were buildings, &c., for which I paid him about two hundred and sixty dollars in the proceeds of the concern of Orman & Young, with the .exception of thirty or forty dollars which I paid him in goods from the store of Bower and Sewall..
45th.. Do you know of any other lands, negroes, houses and lots, or any other property that was purchased with goods, notes, accounts and means that Orman & Young transferred to Rufus Sewall? If so, please state all you know.
Ans. About the same time that Rufus Sewall purchased the. land, of Dr. Watson, he bought from Thomas J. Scur
46th. "What was the actual value of the goods, to the best of your knowledge and belief, at the time of the sale by Or-man & Young to Bufus Sewall ?
Ans. From my present knowledge of the goods at Webb-ville and St. Andrew’s Bay, (for I know nothing of those at the Bay when the trade was made,) I should judge them to be worth in cash, about six thousand dollars.
47th. Did or did not Bower & Sewall consider that they had got a great bargain in the goods at the price that Bufus Sewall sold them to them, and did or did not Bufus Sewall write to Bower & Sewall, stating that there were several bales of goods at St. Andrew’s Bay, and sundry other articles that were not included in the inventory that Bower & Sewall had made at that place ?
Ans. Bower & Sewall received the goods at 'W’ebbville at thirty-five hundred dollars and those at St. Andrew’s Bay at three thousand dollars, conditionally, that they should, on taking an inventory, amount to nearly that sum, more or less. Bower & Sewall did not consider them a bargain on the terms they received them — say on a credit of two years, without interest, for it was partly in consideration of this circumstance that Bufus Sewall was to receive three-eighths of the profits of the concern. After taking an inventory of goods at St. Andrew’s Bay, which amounted to about twenty-eight hundred dollars, Bufus Sewall, upon examination, discovered articles to a considerable amount not included in the inventory, among which was a bale of domestics.
48th. Did you or not understand that the sale by Orman & Young to Bufus Sewall, was not completed until the date of the bill of sale and the bond, which was on the 14th Janu
Ans. I always understood and believed that the trade was not consummated until the 14th day of January, 1829, when the bill of sale and bond were signed. I do not know whether the estimates previously made were relied on or not.
49th. Did you or not understand at the time of the sale by Orman & Young to Rufus Sewall, and at the time the bond was made and executed by Rufus Sewall and Ebenezer J. Bower to Orman & Young, that the amount of cash that Orman & Young had agreed to pay to George O. Hodges and Arthur Roster, on account of the cotton purchased of them, and all sums due from Orman & Young, was provided for generally in the bond ?
Ans. I understood that the bond was to indemnif3 Orman & Young against the payment of the debts generally. No debt was especially considered that I recollect.
50th. Is the goods containing the inventory of goods and stock, taken on the 7th March, 1829, now before the auditors ?
Ans. I have not seen it.
51st. Is there any book before the auditors containing the original entries by Orman & Young or by their clerk, of the business done from the 1st to the 14th January, 1829?
Ans. I do not know.
The further testimony of E. J. Bower in answer to interrogatories propounded to him before 'the auditors:
Interrogatory 1st. What was the situation of Orman & Young when you first became acquainted with them ?
Ans. I understood that they were both clerks for Rufus Sewall or William Hutchings & Co.
2d. Were you clerk for Orman & Young about two years preceding the first January, 1829?
3d. Were not tlie books of William Ilitcbings & Co. in the store of Orman & Young during that time, and was it not jour impression that the accounts on said books were generally settled ?
Ans. They were, and it was.
4th. Was not the business after the 7th March, 1828, transacted on the same capital as before %
Ans. It was.
5th. Did you not understand from Thomas Orman that he had, about the first January, 1829, disposed of all his interest in the concern of Orman & Young, and state all you know about it ?
Ans. I did so understand from Mr. Orman. About the first of January, 1829, I observed to Mr. Orman that I understood from Mr. Sewall, that he, (Sewall,) had contracted for the purchase of his, (Orman’s) interest in the concern, and without making any reply, Mr. Orman asked me how I had understood it. I told him I understood that he was to receive six thousand five hundred dollars, and the store and warehouse at St. Andrew’s Bay, which he merely signified to me was correct. This I understood was before.any estimates were made of any of the property.
6th. Did you know the reason why Thomas Orman would not comply with the aforesaid trade ?
Ans. I do not know, but from Mr. Orman’s being so extremely cautious not to commit himself, I supposed the trade was not considered so far consummated by him as to preclude his dissent if he chose, and from his informing me afterwards, when he had made out a list of notes, that the amount far exceeded his expectations, I was led to believe that that was the cause of his not complying with the aforesaid trade.
7th. After this time, was not Bufus Sewall extremely
Ans. He w&.
8th. At the time of the triidfe in which Orm'an & Young were allowed seventeen thousand five hundred dollars, did you not believe the amounts O'f accounts were taken from the boobs as balances' due’, as near as could' bé ascertained under the circumstances ?
Ans. I did.
9th. Whdt do' you consider the property given up to Or-man & Young- worth, in proportion to that retained by IN Sewall %
Ans. I considered a great p'art of it, say ieri thousand,worth twenty-five per cent. More, in propoitioii, than that retained by Mr. Sewall, take it altogether.
10th. What did you consider Orman & Yoiihg’s stock of goods worth at the time of their trade, and Were they not received in the concern of Bower & Sewall at six thousand five hundred dollars, and on what credit would you consider them a fair trade at that amount ?
Aiis. 1 considered Orman & Young’s stock of goods, at the time of trade, worth in cash sik thousand dollars. They were received by Bower & Sewall at sixty-five hundred dollars, which I considered a fair price, at one year’s credit.
The further testimony of E. J. Bower in answer to interrogatories before the auditors:
Int. 1st. Were you in possession of the books, accounts, notes, &c., that Bufus Sewall purchased from Orman & Young, and were you entrusted with the closing and settling up of the books and accounts and receiving payments of the notes, and generally attending to Bufus Sewall’s business, from the time of the purchase from Orman & Young, until after the 2d day of Juty, 1829 ?
Ans. I was until about the time named in the question.-
Ans. Not that I recollect of.
3d. Do you believe you would have known of any and all such purchases of cotton, had they been made by Rufus Sewall*
Ans. I do;
4th. Did Rufits Sewall make you his agent generally to transact for him, and to attend to his business during his ab-» sence*
Ans. He did.
5th. Did Rufus Sewall leave the Territory of Florida* or did he leave Jackson and Washington counties soon after purchasing Orman & Young’s interest in the concern*
Ans. He did;
6th. Did you, as agent for Rufus Sewall, purchase any cotton in any way * If so, please state how much.
Ans. I did not.
7th. Did Bower & Sewall purchase any cotton, either on their own account, or for, or as the agents of Rufus Sewall* either in the seed or in the bale, up to the 2d July* 1829 ? If so, please state how much.
Ans. They did not.-
8th. Was or was not all the cotton that was shipped from St. Andrew’s Bay in the month of February* 1829, to the best of your knowledge and belielf, the same that was purchased and received from Orman & Young *
Ans. It was.-
9th. Was or was not this cotton shipped to Mobile *
Ans. I do not know, but believe it was.
10th. Did you take with you to New Orleans in July* 1829, a cargo of upwards of sixty bales of cotton from Sts
Ans. In July, 1829, I took to New Orleans a cargo of cotton, consisting, I believe, of sixty-four bales, from St. Andrew’s Bay, on the schooner Magnolia, of Mobile.
11th. Was or was not the greater part, or nearly all this cargo of cotton that you took to New Orleans, the cotton that Bufus Sewall purchased from Orman & Young on the 14th January, 1829 ?
Ans. Between thirty and forty bales, as well as I recollect, were of the cotton purchased by B. Sewall of Orman & Young.
12th. What was the average weight of a bale of the cotton you took to New Orleans ?
Ans. I do not recollect.
13th. What was the value of cotton per pound when delivered at St. Andrew’s Bay, on or about the 14th January, 1829, and what did the cotton cost Orman & Young delivered at St. Andrew’s Bay ?
Ans. From seven to eight cents.
14th. What was Orman & Young paying for the last cotton they bought in Jackson county, previous to the 14th January, 1829?
Ans. From seven to eight cents.
15th. Did Orman & Young purchase from George O. Hodges and Arthur Foster their crops of cotton ?
Ans. They did.
16th. Was it customary or not for Orman & Young to charge interest on accounts after the 1st January, the time they fell due ?
Ans. It was.
17th. Was it usual for their customers to pay interest on their accounts when charged ?
Ans. It was, with some exceptions.
Int. 1st. Do you know of any agreement between Thomas Buss and Andrew Young, relative to cotton ? If so, please state all you know of such agreement, when and where it took place.
Ans. I do know of an agreement between Thomas Buss and Andrew Young, which, as well as I recollect, was as follows : I think it was in September, 1827, that Mr. Buss stated to Mr. Young that he was anxious to pay off a certain note given to Orman & Young, and signed by Joseph Buss and Sion Smith, for four hundred dollars, with interest at the rate of fifty per cent, per annum, and that he had cotton of the preceding and the (then) present year’s crop, ready to deliver for that purpose, and represented it to be fair and dry; that he could have ginned it immediately at Mooring and Joseph Buss’s gin, or both, whic^i would enable him to pay the note and stop interest at once. Mr. Young, being anxious to have the ginning of the cotton, prevailed upon him to wait two weeks, when he expected Or-man & Young’s gin-liouse would be ready to receive it, which Mr. Buss agreed to, upon condition, that if the gin-house was not ready in two weeks, then, after allowing a reasonable time for hauling, ginning and packing the cotton, the interest on the note should cease, which Mr. Young agreed to. The gin-house was not ready at the time agreed upon and the cotton was not delivered till some time after it was. ready, and after Mr. Orman’s return from the North, which I believe was in November.
2d. Did Thomas Buss say to Andrew Young at the time of making said agreement, that he had his cotton all ready to deliver at different gins ? and you will please state Andrew Young’s reply to said statement of Buss.
3d. Did Thomas Russ comply with the terms of said agreement by delivering cotton as soon as the gin of Orman & Young was ready?
Ans. This question is also answered in the statement above.
4th. Did Thomas Russ misstate the agreement between him and said Young to Orman, about the time he said he was ready to commence delivering said cotton, and did not a difficulty arise at this tune between Orman and said Rues, and how was that difficulty terminated ?
Ans. Mr. Russ misstated the agreement, according to my understanding of it, by stating that the interest on the note was to cease after the expiration of the aforesaid two weeks, wdien the gin-house was to have been ready. He then went to St. Andrew’s Bay to see Mr. Young on the subject before, I think, he commenced hauling the cotton.
5th. When Thomas Russ commenced delivering cotton, was he not told by Orman the cotton that he was hauling was not merchantable, and would not be received in any other way than to gin for him, and was not said Russ content with that arrangement at the time ?
Ans. He was, but whether he was content or not, I cannot say, he, notwithstanding, continued to deliver it.
6th. In an attempt to settle with Thomas Russ, after the delivery of all the cotton he had, was there not a receipt drawn for the cotton, and also a note drawn for the amount of Thomas Russ’s account for the previous year’s trade, which Orman was trying to have settled, but Russ refused to sign said note and close the account, upon which Orman also refused to sign said receipt, though said Russ requested him to do so, after hearing the receipt read to him, and after reading it himself?
7th. Did not Orman then take both the receipt and note, (wanting each a signature to complete them,) and attach them by wafer to that page in the ledger in which Thomas Russ’s account last stood, and are they not both there now, as previously affixed by Orman *
Ans. Pie did, and they are.
8th. Do you believe from the best of your knowledge that in settling the whole business with Thomas Russ, as was after-wards done by Rufus Sewall, that it was closed greatly to the disadvantage of Orman & Young, and contrary to your view of the agreement, first and secondly spoken of, and to the papers themselves *
Ans. I thought at the time the settlement was made with Mr. Russ, and still think it was settled considerably to the disadvantage of Mr. Sewall, in settling the concern of Orman & Young, inasmuch as he conceded what I considered him justly entitled to, and what he might have received by law.
9th. Was not you, Mr. Rower, in company with Peter W. Gautier, jr., chosen by Rufus Sewall and Thomas Russ to arbitrate and settle all matters between said Russ and the firm of Orman & Young, and did not Rufus Sewall take the business out of your hands, so far as this, by agreeing to do himself, with said Russ, what you thought not right and just, and contrary to his previous instructions to you in arbitrating *
Ans. To these questions I answer yes.
10th. Do you know of Joseph Russ and Sion Smith, or either of them, ever paying Orman & Yeung anything on a certain note held by them for four hundred dollars, bearing fifty per cent, interest per annum, dated in December, 1826*
11th. If you know anything further that will make for the advantage of Orman & Young, please state it.
Ans. I think of nothing more than I have stated in the foregoing answers that will tend to the advantage of Orman & Young.
Testimony of William J. Watson in answer to interrogatories propounded to him before the auditors :
Interrogatory 1st. Were you Judge of the County Court in 1829 ? "
Ans. I was.
2d. Did Rufus Sewall consult with you on the subject of settlement with Orman & Young ? Did he not state that he had great difficulty in adjusting his business with them Í Please state what you know of it.
Ans. He did once or twice state to me he found it very difficult to effect a settlement with Orman & Young upon anything like fair terms.
3d. Rufus Sewall applied to me, I think, in the latter part of December, ’28, or fore part of January, ’29, for a bill of injunction, for the purpose of arresting his property from the hands of Orman & Young as he informed me, that he might be enabled to effect a fair settlement of the concern ; that a settlement had been offered him by Orman & Young, but upon such terms as he could not think of acceding to. Not being myself acquainted with the nature of a bill of the kind, I told Mr. Sewall I doubted my authority to grant it. I advised him to effect a settlement peaceably if he could. On a second interview, in Webbville, perhaps the day after the first conversation, while on my way to Tallahassee, Mr. Sewall again applied to me for a bill of injunction, that, upon my refusal, he believed he should be materially injured. I told him I was still doubtful of my power to grant a bill to stop a proceeding in which so large
The further testimony of W. J. Watson in answer to interrogatories propounded to him before the auditors:
Interrogatory 1st. Did or did not Rufus Sewall, on application to you for an injunction, enjoin on you the most strict secrecy ?
Ans. Tie did request me to say nothing about his application for the bill until it was determined what would be done.
2d. Did you propose to have some time and place appointed that the parties (Orman & Young and Rufus Sewall) might meet, and be heard by themselves or attorneys, and what did Rufus Sewall say to this proposition ?
Ans. I cannot recollect that I did.
3d. Did Rufus Sewall say that he wanted to and must pounce upon Orman & Young in the way he was endeavoring to do, that is, by injunction, and get the means and business in his own hands, and then he could bring Orman & Young to his own terms ? If so, please state it and what conversation passed while on this subject.
Ans. Rufus Sewall stated to me he wanted the bill of injunction granted that he might get the effects of the concern into his hands, or the hands of other persons appointed for the purpose, to prevent Orman & Young from taking off any papers or other property belonging to the firm, hence it appeared he wished the matter kept secret, that
4th. Did you of your own knowledge know, or have yoii ever heard it alleged, -except by Sewall, that Orman & Young were secreting or disposing of any of their effects, cash, goods, cotton, or property of any description what* ever, for the purpose of defrauding their creditors, or anyone ?
Ans. I did not.
5th. Did Rufus Sewall purchase from you a tract of land ? If so, state with what funds you were paid, and describe the land.
Ans. Rufus Sewall purchased from me the north-west quarter of section five, township five; the north-west quarter of section eight; the east half of the north-east quarter, and the east half of the south-east quarter of section six; all of township five, range eleven, north and west, for which he paid me five or six hundred dollars, in cash, and the balance, (say twenty-three hundred dollars,) in notes due or given to Orman & Young.
The testimony of Wm. W. Loftin, in answer to interrogatories propounded before the auditors :
Interrogatory 1st. Were you present in Webbville at the time, say about the 1st January, 1829, and did you understand by various persons that Orman had sold out his interest in the concern of Orman & Young for $6,500, and did you not go in company with R. Sewall to St. Andrew’s Bay, and did you not understand, on Sewall’s arrival at St. Andrew’s Bay, that Young refused to show him the books of the concern ? Please state what you know.
Ans. I was at Chipóla, in Webbville, about the 1st Jan-
The further testimony of Won W. Loftin, in answer to interrogatories propounded to him before the auditors :
Interrogátory 1st. Wefre you owing Orman & Young by note dated in September, 1828, the sum of sixty-tliree dollars and forty-one cents %
Ans. There ivas a note of about the sum of éixty-threo dollars, which I paid Sewalh
2d. Were you owing Orman & Young, by open account on their books at St. Andrew’s Bay, on the 1st and 14th January, 1829, and how much?
Ans. I was owing Orman & Youüg a small amount which the books will show.
3d* Is the statement hereto attached, in your hand-writing and signature, official, correct to the best of your knowledge ?
Ans. The statement hereto attached concerning the shipment of cotton is correct, to the best of my knowledge and belief, viz:
The schooner Carrol, of New York, arrived in St. Andrew’s Bay in ballast, from Pensacola, and sailed on February llth, 1829, for Mobile, with a cargo of one hundred and tiventy-two bales of cotton, shipped from the bead of St. Andrew’s Bay; and on July 2d, 1829, the schooner Mag-* nolia, Lewis Leelaud, master, sailed from the same place
The further testimony of Addison Man dell, in answer to interrogatories propounded to him before the auditors : Interrogatory 1st. Please state whether you had for collection a debt against Orman & Young, in favor of J. L. Florence, and if you applied to Bufus Sewall for payment, and what was his answer, and state the time.
(See answer in former deposition above.)
Gross interrogatories by Bufus Sewall:
1st. What was the conversation which took place between yon and Sewall in relation to the above matter 2
Ans. At the time of the conversation, Mr. Sewall stated to me that he had given an obligation to Orman & Young to settle this and other debts, hut Sewall expressed an anxiety that the debts should ho collected of Orman & Young as "soon as possible, in order to close the concern.
Testimony of Sears Bryan in answer to interrogatories propounded to him before the auditors:
Interrogatory 1st. Was you present when a conversation arose between Orman & Young and Bufus Sewall, for selling of their (Orman & Young’s) interest in the concern 2
Ans. I was present at one conversation.
2d. Where was it that this conversation took place 2
Ans. Opposite the old store of Orman & Young in Webb-ville.
3d. IIow much, and in what did Bufus Sewall offer to Orman & Young, and how much, and in what did Orman & Young say they would take for their interest 2
Ans. Seventeen thousand five hundred dollars was the offer of Bufus Sewall, and my convictions were at that time that the bargain was closed up to that instant.
1th. Hid Bufus Sewall advance on his first offer, and how much 2
5tli. Did Orman & Young refuse to take less tlian they at first said they would ?
Ans. I believe they did.
Oth. Did the parties separate, not agreeing on a trade at this time ?
Ans. I do not recollect.
7th. Did you hear either of the parties during this conversation say anything about estimates or value of property in any way ?
Ans. I do not distinctly recollect.
8th. Did you or not understand at the time, that it was for a lumping trade altogether, and considered so by the parties themselves ?
Ans. That was- my impression.
9th. Did Bufus Sewall pursue Orman & Young towards their gin-house after this conversation took place ?
Ans. I do not recollect.
10th. Did you not understand from the parties that they had effected a trade on the same day that this conversation you speak of took place, for the sum of seventeen thousand five hundred dollars %
Ans. I understood such to be the trade, but do not remember whether it was the same day, or what day it was; it was within a few days thereafter.
11th. Do you believe from all you heard between the parties and from what transpired within your knowledge, that the sale was made by Orman & Young to Rufus Sewall, of their interest in the concern for seventeen thousand five hundred dollars, on or about the same day that you heard the parties, (Orman & Young and Rufus Sewall,) bargaining or endeavoring to effect a trade ?
Ans. Answered in third and tenth answers.
Interrogatory by Rufus Sewall:
Ans. I’ did.
Ques. 2. What conversation took place at this time between you and Rufus Sewall %
[Remark. — The record does not give the answer to this question, if any was made.]
Testimony of George O. Ilodges, in answer to interrogatories propounded before the auditors ;
Interrogatory 1st. Did Orman & Young purchase from you your crop of cotton in the year 1828 ?
Ans. Yes.
2d. When was it they made the purchase ?
Ans. Some time in December,
3d. Was the cotton to be delivered at Col. A. Foster’s gin or at St. Andrew’s Bay ?
Ans. At Col, Foster’s gin.
4th. What was the price Orman & Young* was to pay for your cotton ?
Ans. I cannot say positively, but I think about 7fe,
5th. Did Orman & Young, at the time they purchased your cotton, agree to let you have, by a certain time, about four hundred dollars to pay for land %
Ans. They did.
6th. Did you or not consider Orman & Young bound to you for the payment of this cotton ?
Ans. I considered Mr. Orman bound.
7th. Did you call on Orman & Young for the cash they had agreed to pay you ?
Ans. I called 'on Orman once; he stated the money should be paid, and finally went with me to Mr. Bower with whom I settled, and I considered Mr. Bower as the clerk of Rufus Sewall.
8th, Did Orman & Young tell you that there was an ar
Ans, I do not recollect.
9th. Was the money paid by him or byE. J". Bower for him ? Was it or not so arranged as to answer your purposes ?
Ans. I received the money from Mr. Bower, and the settlement was effected to my satisfaction.
, 10th. IIow much cotton did you deliver on the agree.ment made with Orman A Young?
Ans. I do not recollect.
11th. Ho you know any thing of an agreement (verbal) made with Col. A. Foster for his crop of cotton? If so, please state what were the conditions of that agreement, and how much cotton Col. A. Foster delivered, and the price he was to receive for it.
Ans. Orman A Young agreed to pay Ool. Foster $100 on account of his cotton crop, which amount was actually ¡)aid by Mr. Bower for Rufus Sewall by exchange of notes.
12th. Hid you or not understand from Ool. A. Foster that he considered Orman A Young bound to him for the payment of this cotton ?
Ans. I did.
13th. Were you in company with Ool. A. Foster when he called on Orman A Young for the amount they agreed to let him have to pay for land, on account of the cotton he had sold them ?
Ans. I was.
11th. Did Orman A Young, on application to them by you and Ool. A. Foster, go with you both to the store of Bower and Sewall, and talk with E. J. Bower, about arranging the business with you and Col. A. Foster, for the payment of the amount of cash Orman A Young had agreed to pay you both on account of the cotton they had purchased of you and Col. A. Foster?
15th. "Was the payment made satisfactory to you and Col. A. Foster, as per agreement with Orman & Young by E. J. Bower, as the acting agent of Hufus Sewall?
Ans. It was.
Testimony of Nathan Spears in answer to interrogatories •propounded to him before the auditors:
Interrogatory ■ 1st. Were you employed by Orman & Young to attend to their business at their gin-house and lot, in the year 1828 ?
Ans. I was.
2d. When did you commence attending to their business?
Ans. I commenced attending to business for Orman & Young about 2d or 3d of October, 1828.
3d. Iiow long were you in their employ ?
Ans. Two months and ten days.
4th. Had Orman & Young a quantity of cotton in the seed to gin out when you commenced attending to their business ? If so, please state how much.
Ans. They had about 40,000 lbs. to gin.
5th.- How long were you engaged in ginning the said cotton they had on hand ?
Ans. About six weeks ginning and packing.
6th. Do you not believe, from the best of your knowledge, that the seed cotton that Orman & Young had on hand and was ginned out by yon, was of the crop of the previous year, 1827?
Ans. I believe it was.
7th. Was it or not packed very close in the seed, and covered over with dust as if it had laid some time on hand?
Ans. It was.
' 8th. As fast as this cotton was ginned and packed, was it or not taken by teams to haul to St. vkndrew’s Bay ?
Interrogatories by Kufus Sewall:
1st. IIow much cotton was burnt 2
Ans. There was from seven to nine hales burnt.
2d. Was any cotton burnt previous to your arrival at the gin 2
Ans. No.
Testimony of Warren Nalls, before the auditors :
Interrogatory 1st. Were you employed by Orman & Young to attend to their business at their gin-house and lot in the year 1828 2
Ans. I was a carpenter; not engaged in that capacity; sometimes received cotton.
2d. When did you commence attending to their business 2
Ans. Some time in September.
3d. IIow long were you in their employ 2
Ans. About four months.
4th. Had Orman & Young a quantity of cotton in the seed to gin out when you commenced attending to their business 2 If so, please state how much.
5th. How long were you engaged ginning the seed cotton then on hand 2
Ans. 1 never ginned any.
6th. Was not the cotton received from the first of your engagement with Orman & Young, or to the time that Nathan Spears commenced superintending their business 2
Ans. I do not recollect.
7th. Wliat quantity of cotton was burnt 2
I recollect to liave beard Mr. Orman say he thought there ■was about twelve hales burned.
Interrogatory by Mr. Orman:
Do you or not believe that Nathan Spears had a better opportunity of knowing the quantity .of cotton burned than Orman 2
The testimony of Peter Gautier, jr., before the auditors ;
Interrogatory 1st. Do you know that there was a judgment in favor of Itufus Sewall against John Register, obtained in Ilenry county, Alabama, in the y&ir 1828 ?
Ans. I do.
2d. "Whitt was the amount of the judgment?
Ans. I think about five hundred and twenty-five doll Ell's.
3d. Do you or not know that Orman & Young wore the owners of the debt against John Register, sued on in the name of Rufus Sewall ?
Ans. Mr. Onnan had control of the suit, but whether in his own right or agent for Sewall, I never knew.
4th. Have you not understood from Rufus Sewall that the judgment obtained against John Register was assigned to and was the property of Onrtan & Young ?
Ans. I never did, until in a conversation before the auditors.
5th. Was the judgment stall ding against John Register at the time Orman & Young sold out their interest in their concern to Rufus Sewall, on the 14th January, 1829?
Ans. The judgment against Register was standing opeii against him at the time of the transfer to Rufus Sewall by Orman & Young.
6th. At the time the trade between Orman & Young and Rufus Sewall was in negotiation, did or did not Rufus Sewall consult you as to the situation of the judgment, and what advice did you give him ?
Ans. I do not recollect that he did. Mr. Sewall con* suited me in relation to the judgment, hut whether before or after the transfer to him I do not know. I had previously advised Orman & Young to issue execution for the whole judgment, and the same advice I afterwards gave to Mr. Sewall.
Ans. Is' answered above.
Cross Iíítén'bgatory. Please state all you know with reference to the suit against Register, and the proceedings had thereon.
Ans. In' the Ml of 1828, a judgment was obtained by Rufus Sewall in the Circuit Court of lleniy county, Alabama, against Johh Register, on anote of hand. Several lots Of cotton were delivered to Orman & Young hi payment of said note, and by verdict of the jury, the cotton was to be received at a Certain stated price: By a mistake of counsel thejudgmelit was entered up for five hundred and twenty-' five dollars, when the amount actually due did not exceed two hundred and forty-three dollará. Register obtained an injunction on tho execution issued on said judgment on paying over the said sum of two hundred and forty-three dollars: Orman & Young were acquainted with the circumstance of the mistake in the entry of judgment, before the transfer to Sewall;
Notes, &c.
$2,500.00.
On the first day of February one thousand eight hundréd and twenty-eight, for value received, we promise to pay Rivfus Sewall or order, two thousand five hundred dollars with interest, after tlie 7th day of March next, at six per cent, per annum. If not paid within thirty days from the’ said first day of February, to have interest at the rate of fifteen per cent, per annum, until paid.
Test, ORMAN & YOUNG;
S. Bryan, Clerk.
Chipóla, March 25th, 1826:
On the first day of May one thousand eight hundred and twenty-eight, for value received, W'e promise to pay Bufus Sewall or order, one thousand five hundred dollars, with interest after the seventh day of march next at six per cent, per annum. If not paid within thirty days from the said first of May, to bear interest at the rate of fifteen per cent, per annum until paid. OBMAN & YOUNG.
Chipóla, March 25th, 1826.
Mobile, May 1st, 1827.
Eight months after date, we promise to pay Bufus Sewall or order, twenty-seven hundred dollars, negotiable and payable at the Bank of Mobile, for value received.
OBMAN & YOUNG.
Mobile, January 6th, 1827.
One year after date, we promise to pay Bufas Sewall or order, three thousand one hundred and eighty-six dollars and seventy-five cents, negotiable and payable at the Bank of the St. Stephen’s Steamboat Company, for value received. $3,186.75. OBMAN & YOUNG.
Mobile, May 1st, 1827.
Eight months after date, we promise to pay Bufus Sewall or order, twenty-five hundred dollars, negotiable and payable at the Bank of Mobile, for value received.
$2,500. OBMAN & YOUNG.
Endorsed, Bufus Sewall.
Tombigbee Bank, St. Stephens, Ala., )
8th August, 1827. f
The notes, of which the above are copies, having been transferred to this bank, you are lierby notified not to pay the same without receiving the notes with my endorsement thereon. When due they will be deposited for collection in the Bank of Mobile, with the exception of the note payable
Your obedient servant,
JOHN T. HAZUEL, Cashier.
To Messrs. Orman & Young-, Florida.
Mobile, 2d, 1828.
Messrs. Orman & YYung — Dear Sirs: I am without any thing from you for a long time, and your payments cause an immense deal of trouble. B. & S.’s account for $500 was due the 28th of August; Gay’s bill for $652.97 was due yesterday, and paid. The packet Elizur, I presume, is departed before this. I hope to God the bills of lading-are forwarded. Our time of co-partnership expires 7th March. I wish you would take account of stock and forward it by mail as I shall be unable to leave Mobile till in April, and give me your ideas as to the business; close it as fast as in your power. I am in immense advances to you and cannot sustain it. Indeed, I would not be so liarrassed in mind for all the profits that will ever be realized from the concern.
Yours, «feo., BUFHS SEWALL.
I obtained judgment against Stone for $17,527.26, and as the Court sits the last of March, it is necessary for mo to be here. After I get my money from him and his securities, I shall be rich again, and until then I shall -want all your aid.
auditors’ report.
The undersigned, appointed by the Superior Court of Jackson county, to audit the books and accounts of Orman & Young, with a view to the settlement of differences existing in the accounts of Bufus Sewall, Thomas Orman & Andrew Young, formerly trading under the firm of Orman & Young, having gone into a minute and full examination of said books and accounts, beg leave to report the following as correct showing from the book :
To amount due Rufus Sewall on the 1st of January, 1829,..............................$22,021.76
Debts in New Orleans,..................... 3,157.65
do in New York,....................... 427.12
Bad Debts,............................,,. 5,000.00
Balance,.....----25,882.51
$56,489.04
Orman & Young, Cr.
By Notes,................................ , $27,396.75
By amount of Accounts, .................... 15,697.14
.Cotton,.................................... ' 3,255.30
Corn and Pork,........................... 911.71
Negroes, Horses, Gin-House, &c.,............. 2,430.00
.Goods on hand,............................. 6,500.00
Thomas Orman’s private account,............. 233.68
Andrew Young’s do do.,.............. 44.46
$56,489.04
The foregoing account is made from the books up to the first of January, 1829. The auditors thought proper to parry their examination up to that date only, inasmuch as the notes of the concern were all taken, leaving interest to that date, and besides the list of notes made out by Orman and handed over to the auditors, was dated 1st January, 1829. The amount of merchandize sold from the 1st to the 4th of January, was $374 70-100. The auditors did not include this amount in the accounts, for the reason given above, and because moreover, if the sales of merchandize up to the 14th of January be included, then the interest upon all the notes should be calculated up to that date, Avhen in fact, it was cast only up to the 1st January. A note for $192, given for the hire of two negro boys, should, in the opinion of the auditors, be credited to Sewall, for the following reasons: The negroes were purchased by Onpan &
Another subject upon which the auditors were not satisfied sufficiently well to decide, is the cargo of schooner Carroll, which schooner was wrecked, and that part of her caigo which was saved sold by the Port Warden of Pensacola; this was some time after the 7th March, 1828, and it was contended by Orman before the auditors, that at that time Sewall was not a partner in the concern of Orman & Young, the partnership having expired, agreeable to the articles of co-partnership, on the 7th March, 1828. No evidence was adduced, however, to prove that any direct communications had passed between the parties as to the cessation of co-partnership at that time, and Sewall considered himself still interested up to the 1st January, 1829, which was the time of transfer. The Court is referred to papers marked A, which relate to schooner Carroll.
According to the agreement, Sewall is entitled to 2 per cent, per month on all advances of cash made by him up to the 1st January, 1829, with interest on the same. Also, he should be allowed a commission of 2|- per cent, on all acceptances over and above $1,000, to which extent only he had bound himself to become responsible. The interrogatories in relation to the final settlement of the business have all been taken and are sent up to the Court for its consideration. Sewall is also entitled to 10 per cent, commissions for his services in closing the business, that is 10 per cent, pn the whole amount of property estimated on page first of
The last subject to be named to the Court is the account of Thomas M. Bush. The circumstances are as follows: A lot of goods purchased in New Orleans by Bush for and on account of one Bryan, was brought into St. Andrew’s Bay, and sold by Bush for Bryan to Orman & Young some time in 1828. The bill, amounting to $1,510, was receipted by Bush to Orman & Young, in order to secure the goods against an execution in the hands of the Sheriff against said Bryan. The general account of Bush with Orman & Young was afterwards settled by Bui us Sewall. It does not appear positively that the bill of goods was ever paid Bush by Orman & Young, and if not, Sewall should be credited with $750, which appears to have been the balance of Bush’s account with Orman & Young, leaving out the $1,510. In this opinion Messrs. Webb & Bertram agree. Mr. ITorne dissenting. My reasons for differing with my associate auditors in the foregoing case is, that if Mr. Bush’s testimony is allowed in this case, I think it went to state, (if my recollections serve me,) that Mr. Bush did not receive payment for whole amount of the goods at the time he gave the receipt, but that Orman & Young did pay the whole amount before the transfer to Sewall, and if this be the fact, Sewall should not be credited with the $750.
The amount standing to the credit of Bufus Sewall on page 1st, is the amount as taken from the books of Orman & Young, and does not include interest, commission or differences of exchcmge, which, according to mercantile rules, he
Having stated the pleadings, it will be observed that the cross bill was filed to obtain the rescisión of an agreement entered into between said Rufus Sewall and said Orman & Young, who had been partners in trade under the name, style and firm of Orman & Young, and in which the said Sew-all purchased the interest of his said co-partners. In said agreement is embraced a bond given by said Sewall to said Orman & Young, with one E. J. Bower as surety, and a conveyance and transfer by said Orman & Young to said Rufus Sewall of all the assets of any description in any w'ay be longing to or acquired by the said firm of Orman & Young, which bond and conveyance are reported at full length in the 9th Florida, pages 28 and 29. The application for rescisión is made by the purchaser, whom it appears was a dormant partner, residing at a diiferent place than where the business was conducted, and who charges that his co-partners took advantage of his pecuniary necessities, of his want of knowledge of the business, and by concealing from him the amount of the assets and situation of the business of the firm, and by fraudulent misrepresentations induced him to purchase their interest and enter into said agreement.
The cross bill does not seek to vary the written agreement, but desires to set it aside altogether, and that an account may be taken between the said late partners, or that the amount coming to him, (Sewall,) in consequence of errors, mistakes, «fee., committed by the-said Orman & Young in the estimate and representations made, may be ascertained and allowed him.
It will be' further seen that it is provided that “ dll the profits belonging to scuid c'oncerii at the expiration of the aforementioned two years, to be Halued by the said parties, and sold or bO'ught by them as they may agree.” •
It appeal's by the pleadings and proofs that the relative position of these said partners was as follows: Tlie business' át Andrew’s Bay was managed, by Andrew Young; that at Webbville or Chipóla by Thomas Orman, with E. J. Bower as clerk and principal bobk-keeper, Avhile Sewall, the dormant partner, resided in Mobile.
It also appears that on the 7th Mardh, 1828, when thd partnership Avas to have expired by its own limitation, the said Orman & Young, in compliance with the Avritten request of Rufus Sewall, took an inventory of the stock then on hand. It also' appears that after said inventory was taken the said Orman & Young took the goods on hand and commenced business on their own account. The said Ormah & Young considered the partnership at an end, and in thus appropriating the goods treated it as a- purchase on their part. Whether said Sewall ever consented to their taking-the goods oh their OAvn account does not appear. Orman & Young in their ansAver say, that in April, 1829, Avlien SeAvall
Thus matters stood in April, 1828, when said Sewall went to Webbville and commenced negotiations. It appears that said Sewall then claimed there was due ail'd owing to him the sum of $28,700. lie then received from Orman <& Young $2,635, but no definite action was taken.- Again in December, 1828, said Sewall went to Webbville, and va-' rious propositions Avefe made, which finally resulted in a settlement on the láth January, 1829. This settlement, made under these circumstances, is the one sought by this cross bill to be rescinded or corrected.
The" legal character of this settlement has been determined.See 9 Florida, page 56, to wit: “That the partnership property was not left in the hands of Sewall to pay debts with, he assuming a trust. On the- contrary, the same is' bona fide sold to him. A conveyance to him is executed by Orman & Young, in which they covenant to-warrant and defend him against their claim. The partnership is dissolved; a final settlement and distribution made, a sum of money paid, an agreement entered into between the partners, in which the creditors are not parties; that said Sewall as part of the purchase money, will pay all the debts not specially out of the partnership property, but that he would pay them, and as an indemnity against their suffering damage, he executes a bond with security.”
Before proceeding to consider the grounds upon which the relief is asked, and the testimony supporting the application, it becomes important to consider the principles in
The relation of the parties to the contract which was the subject of relief in White vs. Walker, 5 Florida, page 480, was different from the one at bar. In that case the vendor being a partner, prayed relief against the purchaser, also a partner, the purchaser having had the exclusive management and control of the business. Still for the most part, the principles there laid down, as far as applicable, may be adopted as rules for the government of the case at bar. In said White & Walker, the Court say: “ It is a general and most material rule in all cases of accounts, that where there has been a settlement, and the account has either been signed or a security executed at the foot of it, a Court of equity will not open that transaction, unless the evidence produced, (founded on the charges in the bill,) shows the transaction to be so iniquitous that it ought not to be brought forward at all to affect the party sought to be bound.”
First. It is contended that this settlement should be can-celled or errors and mistatements therein corrected, upon the ground that it was founded in fraud and grossest oppression, in that the said Sewall was greatly embarrassed, and the said vendors knew this and availed themselves of his embarrassments and necessities to exact it.
This is charged in the cross bill, and does the evidencee produced sustained it % It is well settled that equity will relieve against a contract -where the party complaining was greatly embarrassed, and the opposite party availed himself of that embarrassment to force a settlement favorable to himself.
This principle presents two questions for inquiry: First, whether it appéars from the evidence that said Sewall was, at the time said agreement was entered into, greatly embarrassed, which was known to Orman & Young, and they
The testimony of Mr. Bower, together with the articles of co-partnership, sustain the reasons given. Mr. Bower, in his deposition taken before the auditors, is asked in the 34th interrogatory: “ Do you or do you not know that from the .situation of the books then being behind hand in posting, •&c., that it must have been almost impossible from the situation and extent of business and amount of debts due to Orman & Young, to have got at anything like accuracy in the amounts in the time this trade wras in its negotiation to completion ? ”
To this he answers and says: “ It would have been extremely difficult, if not impossible to arrive at anything like the correct amount due Orman & Young in the time the trade was negotiating.” It was stated in argument as an additional excuse, that the two notes, one of $2,500, the other of $1,500, given by Orman & Young to Sewall, in March, 1826, for the stock of the late firm of William Hutchings & Co., and three other notes, one for $2,700, one for $3,186.75, and the other for $2,500, given by them to Sew-'
It is contended by the complainant that the said excuses were false and deceptive, and pretexts for taking advantage of Sewall’s embarrassments:
First. Because they constituted but a portion of their debt to Sewall. Secondly : That the allegation of the want of funds is disproved by their letter to Taggard by making large engagements, and the highly prosperous state of their new firm, which it is contended shows that their funds were devoted to the new firm, and not to the payment of the debt of Sewall.
The testimony of Mr. Bower in answer to the 22d interrogatory, and said letter of Taggard is relied upon as showing excuses false.
Mr. Bower says: “ I understood from Orman that the rea^son a settlement was not then made was, that Rufus Sewall had not with him the notes of Orman & Young, and certain other documents that were necessary in effecting a final settlement.”
The letter to Taggard & Co. bears date 15th August, 1828,. and the following is an extract from it, being that portion cited in evidence, viz :
“ Yours of the 2d July last was duly received. We expect you to use your good judgment in effecting sales to best advantage. ' When Mr. Rufus Sewall left here for Mobile thence to New York, it was understood that he woulgj,
The above testimony of Bower sustains the answer of Or-man & Young, so far as it goes, and to give the effect to the evidence contained in their letter to Taggard & Co., which is urged by the counsel for Sewall, would be straining the rule of construction to a great length. It will be seen this letter was written in August, 1828, four months before December, and when we refer to the testimony of Charles Sew-all and Bower, it will be seen that Taggard & Co. refused to supply their order. We can see nothing in this letter inconsistent with the assertion of Orman & Young in their answer, that they had not made collections at that time sufficient to pay off the amount due him on account of acceptances, nor that the affairs of the old firm had not been brought to a close, so that his share could be ascertained. The most that can be made of it would be that they were carrying on business on their own account or continuing in the partnership business.
As we have already seen, the answer to the cross bill in that part which is directly responsive to the bill, denies that it was with a view of making the most of Sewall’s necessities that a settlement and payment was not made in said December to him.
There being no evidence in support of this charge overcoming the effect of this answer, we are to give it credence.
It is alleged in the cross bill and urged by the complainant Sewall, that said Orman & Young conducted the busi
This brings us to consider leading principles in equity applicable to such a charge.
It is well settled that a suppression of truth, or suggestion of what is not true, in some material point, will be ground for setting aside any contract. And in case of Partners, Story in his Equity Jurisprudence, vol. 1, §220, lays down the rule to be, that “If a partner who exclusively superintends the share and accounts of the concern, should, by concealment of the true state of the accounts and business, purchase the business of the other partner for an inadequate price by means of such concealment, the purchase will be held void.” A fortiori, we hold that if a partner who exclusively superintends the business and accounts of the concern, should by concealment of the true state of the accounts and business, sell his share of the assets of the firm to a co-partner for a disproportionate price, by means of such concealment, the purchase will be held void.
Again, concealment of a material fact by a party to a con
A misrepresentation by a vendor, to be ground for a recission of the contract, must be in reference to some material thing unknown to the vendee, either from not having examined, or from want of opportunity to be informed, or from entire confidence reposed in the vendor, and his remedy must be pursued in good time after the injury is discovered. Halls vs. Thompson, 1 S. & M., 443; Ayers vs. Mitchell, 3 S. & M., 683.
In the case of White vs. Walker, 5 Florida, 479, which was a case between partners, this Court say : To these general rules there are qualification?, suited to cases of extraordinary nature. As if the party making the representation was speaking not from personal knowledge, but with reference to accounts that were equally open to both parties, and the representations were justified by such accounts.
"With these general principles and qualifications for our guide, let us proceed to enquire whether the evidence sustains the allegations in the cross bill in this particular.
The cross bill alleges that Orman & Young had the books in their own possession ; had made all or nearly all the entries ; were personally acquainted with every transaction of the firm, and must have known the true state of their concern ; that they made an estimate in writing of the business affairs of the firm, which they submitted to him, said Sewall, as correct.
The following is the estimate of Mr. Orman, viz:
Accounts................. ................... 16,600
Goods on hand..............................•... 7,000
Cotton........................................ 4,000
Gin-house and lot............ .................
Horses and mules.......... ................. 1,000
Corn, pork, &c.........................1,000
One negro man........................300
One negro woman and child..................... 600
Two negro boys............. 900
$59,800
Houses and lot at the Bay and this place, at least... 200
$60,000
Debts due from the concern...........$24,000
R. Sewall’s amount previous to the March, 1828, his share of profits................6,000
Amounts owing here, and amounts settled, and bad debts ..........5,000'
$35,000
That on furnishing this statement the said Orman & Young proposed to sell their interest of the firm to said Sew-all for $17,500, and said Sewall avers that it was on this statement he acted; and confiding in it, he wSs induced to accept the offer made by them. The said Ofman & Young in their answer severally deny these allegations; they deny that the statement was submitted by them to said SeWall as' correct; they deny that the proposition to take $17,500 came from them, and aver that it was Sewall’s own proposition ; they deny that they had any knowledge of the business which was not equally open to examination by said Sewall;' and aver that Sewall did undertake and did examine the books for himself; they deny that he relied upoif their statement; they aver that he inquired for himself consulted the clerk of the store, and acted upon his own infor
Mi\ Bower, in his testimony taken before Commissioners, on the 20th June, 1831, says on this point: “ Sewall was at Webbvillej in March or April of the same year, when he attempted to make a settlement with Orman & Young, who declined doing so, because (as they informed me) Mr. Sewall had their notes to a largo amount, which he ivas not prepared to give up. During the time, and afterwards, when said Orman & Young were absent, I had charge of the concern. Said Sewall had free access to the books and papers, and had a fair opportunity to examine and calculate for himself.
In his testimony taken before the auditors, he says : “ 111 April, 1828, Orman & Young were endeavoring to trade in some way, but heard no offer or proposition, except by Mr. Sewall, who made some figures on a piece of paper and held it up to Orman & Young, aud said lie would give that, meaning, I suppose, the amount stated in figures. During Mr. Sewall’s stay at Webbville in April, 1828, as well as at all other times when I was in the store, he had free access to the books and papers belonging to the concern. He was there a day or two in Mr. Orman’s absence to New Orleans, but
That Mr. Sewall posted himself up pretty well as to the business of the concern during his visit in April, is evidenced from the fact that we find that on the 29th of July following, he writes to said Bower, and encloses him a statement of the whole business, as follows, viz:
Notes and accounts....... $17,947.62
do do.,............................... 16,491.16
Aug............1,660.00
Goods....6,000.00
Cotton,........... 4,000.00
Gin-house,........ 1,000 00
Cash,.............1,000
Gyves,............ . 1,800.00
$58,868.78
BAD AND DOUBTFUL DEBTS.
R. S.,......................................$19,800.00
R. S.,....................................... 5,250.00
N. O.,..................................... 3,200.00
N. Y.,..................................... 450.00
$28,700.00
Trial January 1st, 1829.
Orman & Young’s indebtedness is above in this way, ac-
cording to their own accounts:
Dr.
One note due on the 1st February, 1828,..........$ 2,500
One note due on the 1st May, 1828,............. 1,500
One note due on the 1st April, 1829,.............. 500
On demand,...................................11,659
Do do.,..................................... 50
Do do.,..................................... 3,180
Mr. Sewall’s account,........................... 5,200
Payment,..................................... 3,000
Deceived payment,............. 95
15,434
My account in Boston since in cash paid,.......... 3,200
$49,323
Cr.
By proceeds of 10 bales of cotton,.................$5,500
By proceeds of 320 bales of cotton,...............$ 9,497
Draft on New York,............................ 960
115 bales shipped to Liverpool,................... 4,200
164 bales shipped to New York,................. 5,200
Cash,............................ 2,000
Freight,.............................; ........ 615
$28,492
$28,492
26,831
Being.........................................$7,500
One-tliird profits of $28,331 is the whole business. It would appear by this, that by some means or other said Sewall had arrived at the estimate of $28,331 profits, and that one-tliird of that was his share.
In December, 1828, Mr. Sewall is again at ~Webbville, and renews negotiations, which are completed on the 14th of January. . Of this Mr. Bower testifies, “I know but little that took place while the negotiation was pending, except what I learned from Rufus Sewall. lie informed me of their progress from time to time, and consulted me on the business generally, and on particular points wherein he enter - twined doubts, and on which he was ignorcmt. I don’t know whether Buius Sewall had free access to the books, papers, &e., during this time, as I was seldom, if ever, in the store,
I understood from both parties that the trade was a general and lumping one, and that-the estimate was made out for the purpose of arriving as near to value of whole concern as they could, without measuring, weighing or counting anything.”
-Again, in his deposition taken before commissioners, on the 21st May, 1833, ho testifies: “I do know of the trade between Orman & Young and Rufus Sewall, for a stock of goods and a quantity of other property to a large amount. The goods were estimated in the statement hereunto annexed, in the ha/ndwriting of liufus Sewall, at six thousand dollars, though I believe they were estimated by Orman & Young at seven thousand dollars. The same goods were afterwards included in tho concern of Bower & Sewall at six thousand five hundred dollars. Said Sewall frepaentVy advised cmd consulted with one on the subject of the trade wldle it was negotiating, and on particulars about which he seemed to be doubtful, and ón the general character of the debts due to tho concern, but not (as I recollect) as to the aggregate value of tlie whole concern.
I considered the trade a lumping and general one, and not of specific articles. No inventory was taken of the goods. Said Sewall was evidently dissatisfied with the trade while
Sears Bryan, another witness, says: lie was present when a conversation arose between Orman & Young and Rufus Sewall, for selling of their, (Orman & Young’s) interest in the concern, which took place opposite the old store of Orman & Young, in Webbville ; that Rufus Sewall offered them $17,500, and his convictions-were at that time, that the bargain was closed upon that instant. The auditor’s report is referred to as showing that there was such a discrepancy between the true state of the affairs of the concern and the estimate made the basis of the settlement, that there must have been concealment and suppression by said Orman Young. This report is in evidence, and is made the 29th August, 1831. The auditors say that after having gone into a minute and full examination of said hooks and accounts, beg leave to report tbe following as correct showing from the hooks:
Dr. The old Firm.
To amount due Rufus Sewall on the 1st of January, 1829,..............................$22,021.76
Debts in New Orleans,................ 3,157.65
do in New York,....................... 427.12
Bad Debts,................................ 5,000.00
Balance,..........................,..... 25,882.51
$56,489.04
Orman & Young, Or.
By Notes,................................. $27,396.75
By amount of Accounts, .................... 15,697.14
Cotton,.................................... 3,255.30
Corn and Pork,........................... 911.71
Goods on hand,............................. 6,500.00
Thomas Orman’s private account,............. 233.68
Andrew Young’s private account,............. 44.46
$56,489.04
It will he observed that the auditors do not expressly give the amount of the shave of said Bewail in the profits, but make a balance of $25,882.56, from which we are to divide.
We have now before ns three statements from which we are to make estimate of the share of the profits of this firm. In the one made by Orman & Young, which formed the basis of this settlement, it will be seen that the assets of the firm were put down at $60,000, leaving a blank for value gin-house and lot, which would be so much more.
Debts due from the concern,.....................$24,000
R. Sewall’s amount previous to 7th March, 1828, his share of profits,.............................. 6,000
Amount of bad and doubtful debts,............... 5,000
$35,000
Deduct the $35,000 from the $60,000, leaves a balance for division of $24,000.
Divide the 25,000 into three shares, makes a share $8,333, which would make due Orman & Young $16,666. They received $17,500, being according to this statement, $834 more than their share.
Mr. Sewall, in his statement enclosed to Mr. Bower, makes the assets.................................$53,868.78
And bad and doubtful debts, and debts owing from the concern,............................... 28,700.00
Which makes for division abalance of..........$25,168.78
Divide this by three, and a share is $8,356, making due Orman & Young $16,712. They received, according to this statement, $778 more than their share.
Assets are reported at........................$56,4-89.04
Debts, bad and owing,.......................$30,606.53
Divide $25,882.51 by three, makes a share $8,624.17, and due Orman & Young $17,248.34. They received $17,500, being, according to this statement, $251.66 more than their share.
The testimony sustains the answer which is responsive to the cross bill in the following facts, (i. e.,) That said Sewall had free access to the books; had ecpial opportunity of examining into the business and situation of the firm; that he did undertake to examine for himself, and consulted and advised with Mr. Bower, the confidential clerk of the concern ; that he did not rely upon the statement made by Orman & Young; that said Bewail made the offer to purchase for the $17,500, and that it was not the offer of Orman & Young as alleged. The above comparison of the three estimates conclusively exhibits that the estimate of profits for division made by Orman & Young was not far out of the way, and probably as correct as the situation of the affairs of the concern would warrant, they not attempting to give them of their own knowledge. Thus we think this statement comes within the qualification laid down in White vs. Walker, above.
Besides, it is a well established principle in equity, that nothing but what is plainly injurious to good faith ought to be considered as a fraud sufficient to impeach a contract.
We might here dismiss this branch of the case and proceed to the inquiry, whether the specified errors and mistakes set forth in the cross bill are established, and whether compensation should be made to the extent ascertained; but it is claimed that the profits of the new firm were not included, and that Orman & Young concealed these, that is to
■It will be noticed that the cross bill makes no mention whatever of the “ new firm.” It makes no charge that the' profits of this firm were withheld, nor does' it set up any claim that the partnership continued. By the articles of agreement the partnership was to expire on the 7th March. It appears that Sewall writes Orman & Youhg, “ our term of co-partnership expires 7th March. I wish you to take account of stock and forward them by mail, as I shall be unable to leave Mobile till in April. Give me your ideas as to the business; close it as fast as is in your power.” It ap~pears from the evidence of Bower that account stock was taken at the time, and that Orman & Young took the goods on their own account, opened a new business and new books, treating Sewall as no partner in the new concern. Still, according to the testimony of Bower, carrying on business on the same capital as before.
There is no other evidence of any direct communication between the parties as to the cessation of co-partnership at that time.
The only act of Sewall, excepting silence, that would indicate a continuance, is the purchase of the bill of goods sent by schooner Crrroll, and this act the evidence shows to have been equivocal.
Orman & Young sent their order for goods to Taggard & Co., who declined it. Says Charles A. Sewall in his testi
Thefé is no dotibt but that Ortolan & Young did wrong in appropriating the goods to their private use on the 7th of March withdtit the consent of Said Sewall. This Was not thé way td wind tip the partnership affairs, and the law in such eases is, that if a partner continue to trade With the joint property after dissolution of the partnership, lie must acount for the profits, and if it was continued by express Or implied Consent after the period fixed by the articles of agreement, in such cáse the stipulations of the original will be considered those of the continuing partnership, and it is then á partnership at will. 17 Vesey, 298; Mifflin vs. Smith, 17 Sergt. & Rawle, 165.
On the former adjudication of another branch of this case, (see 9 Florida,) this Court considered the partnership dissolved at the execution of the agreement, on the 14th January, and after a most patient and thorough examination of the "evidence in the case at bar, we are forced to conclude'
It clearly appears that said Sewall was at Webbville in April, and that the said defendants were at that time notoriously carrying on business, claiming it to be on their own account. New books were opened' — -he talks w’ith Bower about the business of a separate concern, and proposes to Bower a partnership, and at the same time talks with Bower upon the profits of the business previously done. The extent oí the business which the “ new firm” were doing urns communicated in a letter of Bower to him, dated September 15, 1828, in which Bower says: “Business has been tolerably good this summer; we have sold since the Ith March upwards of $11,000 worth of goods.” In July, after Mr. Sewall had visited Webbville, he makes out a statement and encloses it to Mr. Bower, in which he makes no specific mention of the profits of the new firm. If he considered the partnership as continuing, and claimed the profits of the new firm, he must have included them.
Again, in December, Orman puts an estimate into his hands in which no specific mention is made of the “ new firm.” Mr. Sewall had then full knowledge, derived at least from Bower, of the prosperity of the new firm. No objection or remark appears to have been made by him, becau.se this article is not specifically mentioned. An article of so great amount, being, as is claimed, a profit of upwards of ten thousand dollars, certainly could not have escaped notice.— Again, Orman & Young convey to said Sewall all the assets of any description in any way belonging to or acquired by the said firm. From this silence of Mr. Sewall, in connection with these facts, one of two tinners is conclusive, viz : That
There are other charges of concealment made in the argument of counsel, but not set forth and alleged in the cross bill, viz : That their statement furnished did not contain an allowance for commissions for advances, commissions for acceptances, interest on the notes of $1,500, given in 182(3, at the partnership formation; that he got no allowance for winding up the concern, and that he did not get interest after the share was ascertained.
It will be readily seen that all these items must of necessity been well known to Mr. Sewall when he made the purchase and perfected the settlement. They are in fact matters which were better known to him than to Orman & Young: certainly he hadan equal opportunity of knowing them. Therefore, without going into an examination as to whether they wrere or were not proper charges, we are of the opinion he had full knowledge of these, his demands, and knew they were not embraced in the said estimate, and acted upon that knowledge when he made the settlement and purchase and gave his bond, thereby relieving the said Or' man and said Young from their agreement to close the business of the concern and assuming that labor himself.
Another item of complaint is, and this we would remark is charged in the bill of complaint, that Orman & Young took the notes for the'amount or share going to them, which were more valuable and drew a higher rate of interest. This seems consistent with their bargain. Mr. Sewall makes the
It appears that said Sewall had equal opportunity of knowing what interest the notes were drawing; a list thereof with the names, amount and rate of interest was before him. Certainly there is nothing appearing by which he was prevented from guarding against such a selection of notes, had he felt so disposed.
If he made an improvident bárgain it is his own fault.— The mere fact that an agreement is improvident is no ground for setting it aside, It can only be avoided because of surprise or mistake, want of freedom, undue influence, the suggestion of falsehood or the suppression of truth. Green vs. Thompson, 2 Iredell Chy., 365.
It is contended by the learned Solicitor for said appellant, that said Orman & Young were the trustees of said Sewall, and made a bargain advantageous to themselves, and should not, upon the principles of equity governing transactions between trustees and cestm que trusts, be permitted to hold any such advantage. In support of which the case of Miehoud et al vs. Girod et al, 4 Howard U. S. Rep., page 556; 1 Story Eq., §323, are cited — r-a principle which was fully considered in this Court in Bellamy vs. Bellamy, 6th Florida, 63.
Whether these principles are applicable to this case, depends, we think, upon whether the partnership was or was not in existence, and continued expressly or impliedly from-the 7th of March up to the rime of the entering into the agreement. The rule in such cases appears to be that before a dissolution, partners are joint tenants' of the partnership
After a dissolution each partner becomes a trusteee for the others as to the partnership funds in his hands, in order to effect a fair'settlement and just distribution of the effects. Allison vs. Davidson, 2 Dev. Eq. Rep., 79.
¥e have already decided that this partnership was not dissolved before the execution of the agreement.
In view of the facts, we are constrained to hold the rules of equity above laid down, and acted upon as those that should govern in this case.
Applying the facts to those núes, we cannot say the evidence establishes that by the acts of Orman & Young or-either of them, the said Sewall was entrapped into an agreement in which he would not otherwise have involved himself, nor that there is such a glaring inadequacy as of itself to stamp the transaction with fraud, by shocking the com-, mon sense of honesty, and thereby render the settlement void. The basis of the settlement is therefore sustained.
This brings us now to the consideration of the specific charges of errors and misrepresentations set forth in the cross bill.
And first as to the note against James Webb: The cross bill charges that they represented in the list of notes that there was $769.47 due on this note, when in fact there was but $275.53 due. The answer avers that said Sewall was apprized that Webb was entitled to a credit for corn and cotton, which they believe was entered on the books about the first of January, 1829. On referring to the list it appears to be set down as represented in the cross bill, and opposite the iiame the word “ error ” is written as is contended by the.
Upon referring to the list which formed the basis of this settlement, it will be seen the notes are set down with certainty.
The original amount of the note is first given, and if a balance, the word Hbal.” is written opposite, then follows the time when the same is due, the rate of interest, the amount of interst, and finally the total amount, the aggregate of the whole being thereby represented as $28,400. In making up this aggregate, the note against James Webb is ■footed up at $769.47.
It is true the word “error” is written opposite to Mr. Webb’s name. There is no evidence that his attention was ever called to it, and at the most the word error is not ex
The next charge is a misrepresentation in the amount due on the note of Sears Bryan. Tine answer makes explanation of the discrepancy, yet upon examination of the list of notes, we do not And any such note as alleged, nor any amount in aggregate due from said Bryan as charged. There are four notes contained in the list of different amounts, but none amounting to $835.84, while the four are in aggregate a much larger sum; but in taking three of them, they do give just the amount set forth in the cross bill. The cross bill charges that there was in fact only due on these notes $757.63. The answer responds by saying that if we add thereto the note and account on Bryan & Marshall, the sum set forth in the list will be found correct. We have no evidence on either side respecting this charged discrepancy, excepting such as may be implied from the bill and answer.
If we take the admission in the answer, we must take it in toto, and if we thus receive it, the difference is accounted for, or in other words the alleged misrepresentation is not sustained.
The next item is the representation of the amount due. from Bichard S. Watson. The response in the answer to-this charge is that Watson was credited on his note while the trade was negotiating. There is no evidence that said Sewall had any knowledge of this credit, which would vary the aggregate $33.77.
In the absence of any proof, we cannot feat consider this
The nest allegation is, that the list of notes represented as-due on the note of Sion Smith & Jos* Iluss the sum of $816, When in fact there was offly due $55 27*
The answer to this charge avers, that said Sewall was informed and knew previous to said settlement, that said Russ had delivered cotton, which said Russ claimed should be' credited on this ifote, as per agreement claimed by said Russ to have been made with said Young, but which agreement was denied by said Young — said Young claiming that the' cotton should be' credited on an open account. Mr. Bower' testifies in his deposition before Commissioners, that he recollects having a conversation with said Sevrall immediately before or after the trade, he thinks it Was before on the subject of Thomas Russ’ note, and Sion Smith’s and Joseph Buss’ note, in which he told him all he kneW about it aff'd particularly stated an understanding between! said Bu'ss- and! Young in the fall preceding which, according' to the understanding, was to he applied to the payment of this- note. — • Again, in answer to interrogatories propounded to him before the auditors, the agreement' is set forth* and the misunderstanding between Buss and Orman & Young explained*We can readily see that in disputing the' right' of EUsS to have this cotton credited on the note, they might consider the note as due and enter it upon the list. The only question was, whether the cotton should be credited on the note' or account. That said Sewall was informed of the dispute at the time of the settlement, is quite apparent from the' whole testimony of Bower. Mr. Sewall, it appears, after-wards settled it wdth Buss, and if in doing so, he was the' loser, it was owing, according to the testimony of Bower, to his having made concessions and yielding what he was justly entitled to.
As to the note against William Evans, there is no evidence sustaining the allegations in the bill. The same can be said of tbe allegations as to the notes of Graham & Pope and Thomas Nalls.
It is next charged that the note from Brown & Lott was represented in said list as having due thereon the sum of $1,342.10, when in fact there was only $1,192.10 due, being a difference of $150. The defendants in their answer responsive to this charge, say that a draft had been drawn on Brown and Lott for $50 in favor of E. Chambless, after the estimate and before tbe sale. There is no evidence further sustaining the allegation in tbe cross bill. We are therefore to take the admission in the answer, which is only as to fifty dollars. Whether said Sewall had any knowledge of this
It is alleged that two notes of Sims & Murphy were included in said list, which should not in truth have been, inasmuch as they were received for merchandize purchased of said Orman & Young after the estimate was given in. The answer directly responsive to this charge says that said notes were obtained before the sale to complainant, and were with the sale transferred to him, which is in fact denying the charge. There is no' evidence in the record sustaining the allegations as to these notes, therefore in conformity with the doctrine often announced in this count, an answer responsive to the bill denying the allegations therein is conclusive upon that question, unless overcome by the testimony of two witnesses or of one, with corroborating circumstances.
The next item of error charged is that two notes of J. B. Bryan and Thomas M. Bush were included in said list, and should not have been because they were given for the hire of two negroes for the year 1828, when the said negroes were transferred to said Sewall about one month after the date of the hiring, and that the hiring for which said notes were given belonged to said Sewall.
The defendants in their answer say that these notes were for the hire of the negroes of the firm, and that said Sewall had full knowledge of it at the time of the settlement.
There is no evidence in the record whatever touching this item ; all the facts have to be gathered from the cross bill and answer. The simple question then is whether these notes were at the time of the settlement between these parties, Sewall, Orman & Young, notes belonging to the firm? It seems to us beyond a question they were. In the hiring
Another charge is that Benjamin Hayes’ noté for $50 was not delivered by said Orman & Young to him, said Sewall.
The answer admits the allegation but avers that it was because they, the said Orman & Young, took it as part of the $17,500 purchase money. Upon looking at the list of notes set forth in the record as those which were thus taken by Orman & Young, we find no entry of any note of said Hayes, corresponding in amount.
Four notes of said Hayes were taken by them, but each of which is of a much larger amount than the one in dispute. There being no evidence to sustain the answer, we conclude there was a mistake, and the amount should be corrected.
The alleged misrepresenations set forth in the cross bill as to the amount of accounts due the firm, we have already somewhat noticed.
It appears from the evidence that the books were not posted, and that the business was so situated that it was impossible to set down the aggregate of these accounts with certainty; an estimate coming from either party must of necessity be a rough estimate.
It seems that Mr. Sewall had by enquiries, examination, and with the aid of Mr. Bower’s information, satisfied himself in July, 1828, that the amount of the accounts were $16,191.16, as appears by statement enclosed by him to Mr. Bower.
The estimate complained of does not appear to have been made from personal knowledge, but with reference to accounts that were equally open to both parties, and the representations were justified by such accounts. We think the estimate clearly in this respect within the rule laid down in White vs. Walker.
Again, it is complained that the goods were put down at $7,000, when it should have been but $6,000. The evidence is that these goods were sold by said Sewall to Bower & Sew-all, for $6,500, and upon examination afterwards, articles were discovered to a considerable amount not included in the inventory, among which was a bale of domestics. Mr. Bower testifies that no inventory of them was taken at the time of the trade, and that he understood from both parties that the goods were roughly estimated. We see no ground for correcting this item.
It is charged that there was misrepresentation in estimating the cotton at $4,000. Here again we see that in July, after Mr. Sewall had spent some days at Webbville, and examined for himself, and made enquiries of Mr, Bower, he writes Mr. "Bower setting down the cotton at $4,000. Mr. Bower’s testimony in reference to the amount of cotton shipped, upon a calculation will be found confirming the estimate. The auditors, after their searching examination, report the amount at $3,255.30. The evidence is that such was the situation of the cotton, arising from their manner of
The next alleged error is that the corn and pork was estimated at a thousand dollars, when it should have been $800. The answer to this specific charge is, that they were estimated at their value at the time of sale, and as a gross estimate, nearly correct.
The auditors found them to he worth $911.71. The evidence is that at the time of the settlement they were estimated without measuring or weighing.
In view of this whole transaction, we cannot consider this a misstatement requiring the interference of the Court.
The next alleged misrepresentation is that two negro hoys were put down at $900, which were purchased for $460.— The answer states, in response to this charge, that the negroes were worth the sum estimated to the firm, and that said Sewall did not object to giving that sum.
We have no evidence in the record as to the value of these negroes, nor can we tell what their value was fixed at by the auditors, for the reason the auditors embraced them with other property in one aggregate. The naked fact that they were purchased for $460 does not make it conclusive that this was the true value, nor can we conclude from this isolated circumstance that their true value was misrepresented.
It is charged that the debts owing by tlie firm wore put down at $24,000, a much smaller sum than was actually owing, and that herein was a misrepresentation.
In their answer Orman & Young deny the charge of misrepresentation, and aver that they stated to said Sewall all the debts due from the firm as far as they were known to
The extent of the indebtedness of the firm to him individually, he is presumed to be cognizant of, even more so than the other partners. In the absence of proof to the contrary, we are to believe he had equal knowledge of the indebtedness. It is apparent from the evidence and admissions of the parties that Mr. Sewall claimed that there was due to him a much larger amount than was admitted by Orman & Young.
In view of the entire transaction, we cannot consider that the difference in this item at all entered into the agreement, or in any way influenced the said Sewall in making the offer he did. Besides, Mr. Bower testifies, that he always understood and has never heard it contradicted by either party, that five thousand dollars were thrown in to cover bad debts, errors and small amounts due hy the concern.
From this we conclude that the estimate was not considered as an accurate one, and that the subsequently ascertained discrepancy was provided for.
The last specific charge is, that the debts of the said firm in Jackson county, and bad ones, were improperly rated at $500. This charge is denied by the answer. There is no evidence sustaining the allegations as to this item, while on the contrary, Mr. Bower, as late as 1831, testifies from all he then knew, he believed it would be sufficient.
The next question is, whether, according to the principles well defined in equity, the ascertained misrepresentations innocently made as to the amount of notes, in the list thereof, can be corrected, if the agreement is not considered at an end, according to the alternate prayer of the bill.
The ease of Allen vs. Hammond, 11 Peters, 72, is one in point. In that case the Court say : “ The contract was
In Story’s Equity Jur. vol. 1, §142, it is laid down that, “ In cases of mutual mistake, going to the essence of the contract, itisbyno means necessary that there should be any presumption of fraud. On the contrary, equity will often relieve, however innocent the parties may be.”
Sustained by such authority, we feel warranted in making the allowances, which, in the aggregate, amount to $925 51,. with lawful interest, from the 14th January, A. D. 1829, which sum should be allowed said Sewall, in the account before the Master.
The opinion of the Court is, that so much of the decree of the Circuit Court dismissing the cross bill be reversed, and that said cause be sent back to the said Circuit Court, with instructions that said cross bill be re-instated, and that the order of referance appointing Master, be so amended as to require said master to ascertain the amount of lawful interest due on the sum of nine hundred and twenty-five dollars and fifty-one cents, from the fourteenth day of January, A. D. 1829, which interest, when ascertained, to be added ro the said sum of $925.51, and the whole amount thereof allowed said Sewall by said master, as an offset or credit against any said damages which the said Thomas Orman as surviving partner, <fcc., may be found to have sustained by reason of the said failure of said S ewall, &c. But if the amount hereby allowed shall exceed the amount of damages thus ascertained, then to enter decree against the said Thomas Orman, surviving partner, &c., for the difference.