STATE OF ILLINOIS. 
 
 9 }-ss. 
 County of Winnebago. 
 
 ti the $muit 
 
 OF WINNEBAGO COUNTY. 
 IN" CHANCERY 
 
 .TOII> A'. FAR WELL, ft al., 
 
 Defentliiiil s. 
 
 ARGUMENT OF C. M. HAWLEY, ESQ., 
 
 On the hearing in behalf of the Defendants.
 

 
 ARG-UMENT OF 
 C. M. H A_WLE Y, Esq. 
 
 STATE OF ILLINOIS, ) In the Gwcint Court of said 
 
 V **. County 
 
 COUNTY OF Jo. DAVIS, Ix 
 
 ELISHA S. WADSWORTH, ] 
 
 vs. 
 
 FRANCIS B. CO OLE Y, I 
 
 JOHN V. FARWELL, and 
 MARSHALL FIELD, Defendants. } 
 
 MAY IT PLKASE THE COURT. 
 
 On the 25th of July, 1803, the said complainant tiled in the 
 Circuit Court of Cook County his bill of complaint against the 
 said defendants to set aside a certain Agreement made and 
 entered into on the 21st day of January, 18*52, by and between 
 the said Wadsworth, Cooley & Far well, on the ground of 
 deception and fraud ; by which said agreement all the copart- 
 nership matters that had heretofore existed between them were 
 settled. On the 30th of September thereafter, the defendants 
 filed their answer, denying the deception and fraud ; and on 
 the same day the said Cooley & Farwell filed their cross-bill ; 
 and on the 12th of October following the said Wadsworth filed 
 his answer to said cross-bill. As the matters of the said plead- 
 ings will be hereinafter particularly reviewed, we will not stop 
 now to set them forth. Owing to the circumstance that his 
 Honor, Erastus S. Williams, was the presiding Judge of the 
 said Cook County Circuit Court at the time the said Wads- 
 worth filed his bill of complaint, and at the same time counsel 
 for him, it was mutually agreed by and between the parties to 
 this suit to remove the same to this Court. 
 
 As the said Agreement is the first or main object of attack 
 on the part of the complainant, Wadsworth, we will now intro- 
 duce the same. It is as follows : 
 
 " ARTICLES OF AGREEMENT, Made and entered into this 
 twenty-first day of January, A. D. 1862, between F. B. Cooley, 
 John V. Farwell and E. S. Wadsworth, witnessetn whereas, 
 the copartnership existing under the name and style of Cooley,
 
 
 Farwell & Co., expiring on the first day of February next, by 
 limitation, and whereas, there was on hand on the ninth day of 
 January, in merchandise, one hundred and sixty-one thousand 
 and forty-one i 8 9 dollars, at invoice price, as part of the assets 
 of said firms, and whereas, E. S. Wadsworth has largely over- 
 drawn his account, and has furthermore received the notes of 
 said firm for ten thousand dollars, Now, therefore, in considera- 
 tion of the premises hereinbefore stated, it is hereby agreed by 
 and between the parties aforesaid, that the said stock of goods, 
 amounting as aforesaid, to $161,041.89, shall be charged to the 
 account of the said Cooley and Farwell, at invoice price, at 
 the date of said invoice, and the said E. S. Wadsworth hereby 
 sells, transfers and delivers all his interest in said stock of 
 goods and all profits made on sales from the date of invoice to 
 the first day of February, to the said F. B. Cooley and John 
 V. Farwell, in consideration of the premises aforesaid, and 
 nothing further is to be drawn from the assets of the aforesaid 
 firm, or of the firm of Cooley, Wadsworth & Co., until the 
 copartnership debts of Cooley, Farewell & Co. are fully paid, 
 after which the remaining assets of both firms shall be divided? 
 pro rata, according to the amounts due to each. 
 
 " The profits of each member of the aforesaid firm of Cooley, 
 Farwell & Co., being determined by the sale of the stock as 
 before stated, and as shown by the profit and loss account, all 
 expenses of closing the business of said firm will be paid from 
 the assets left in the hands of Cooley and Farwell for that pur- 
 pose, who alone are authorized to sign the firm name in liqui- 
 dation of its business, for which purpose the said E. S. Wads- 
 worth agrees to give each of them a power of attorney to exe- 
 cute all papers necessary in the disposal of any property, real 
 or personal, that may be acquired or is now on hand as assets 
 of said firms. 
 
 " Witness our hands and seals the day and year first above 
 written. 
 
 (Signed, respectively as follows :) 
 
 F. B. COOLEY, 
 JOHN V. FARWELL, 
 E. S. WADSWORTH." 
 
 The first question that arises, is, what have the parties to 
 said Agreement done by it, and how do they severally stand 
 under it ?
 
 RECITING PART OF THE AGREEMENT. 
 
 1 st. It declares that the copartnership of the said firm of 
 Cooley, Far well & Co., would expire on the 1st day of Feb'y, 
 1 862, by limitation. 
 
 2d. That on the 9th of January, 1862, there Avas on hand 
 merchandise belonging to the said firm at the invoice price 
 amounting to $161,041.89. 
 
 4. That Wadsworth had at that time, to-wit, on the 21st 
 day of January, 1862, largely overdrawn his account with said 
 firm of Cooley, Far well & Co., and 
 
 o. Wadsworth had received from the said firm of Cooley, 
 Fanvell & Co., its notes for $10,000, and therefore, 
 
 6. In consideration of the premises hereinbefore stated, it 
 was agreed by and between the said Cooley, Farwell & Wads- 
 worth* parties to said agreement, to-wit : 
 
 1st. That the said merchandise, at invoice price, amounting 
 to the said sum of $161,041.89, should be charged to the 
 account of Cooley & Farwell as of the date of said invoice, 
 to-wit, the 9th day of January, 1862. 
 
 2d. Wadsworth sold, transferred and delivered all his 
 interest in said merchandise, so on hand, and all profits made 
 on sales from the said 9th day of January, to the 1st day of 
 February, 1862, to Cooley & Farwell, in consideration of the 
 premises above stated. 
 
 3d. The said merchandise, so on hand and sold, transferred 
 and delivered to Cooley and Farwell, were to be charged to the 
 account of Cooley & Farwell at the invoice price as of the 
 nth day of January, 1862. 
 
 4. The said merchandise being unconverted assets, and 
 taken by Cooley & Fanvell at the invoice price, they were 
 charged to them, as so much of the unconverted assets. 
 
 3d. That the snid merchandise, so on hand, was a part of 
 the assets of the said firm of Cooley, Farwell & Co. 
 
 5. Nothing further was to be drawn by either Cooley, 
 Farwell or Wadsworth from the assets of either the firms of 
 Cooley, Wadsworth & Co., No. 1 and 2, or Cooley, Farwell 
 & Co., until the copartnership debts of Cooley, Farwell & Co. 
 were fully paid. 
 
 6. When the debts of Cooley, Farwell & Co. were paid, 
 the remaining assets of the said firms were to be divided 
 between Cooley, Farwell and Wadsworth, pro rata, according 
 to the amounts due, to each of them. . . . . . ,
 
 By way of setting forth the said agreement, and to explain 
 portions of it, as they understood it, the parties to the same 
 further say : 
 
 1. The profits of each partner in the firm of Cooley, Far- 
 well & Co. was determined by the sale of the said merchandise 
 to Cooley & Farvvell that is, the profits were ended closed, 
 and, therefore, they say : 
 
 2. The profit and loss account of said firm of Cooley, Far- 
 well & Co. shows that the profits of each partner in this firm 
 were determined ended closed ; and, because the profits of 
 each partner were determined ended closed ; therefore, 
 
 3. All expenses of closing the business of the said firm of 
 Cooley, Fanvell & Co. were to be paid from the assets the 
 remaining assets of the three said firms, and which assets are 
 for this purpose : 
 
 4. Left in the hands of Cooley & Farwell. 
 
 5. Cooley & Farwell, with the said remaining assets, were 
 to pay the debts and expenses of closing the business of the 
 said firm of Cooley, Farwell & Co. 
 
 6. Cooley & Fanvell, for the purpose of closing the busi- 
 ness of the firm of Cooley, Farwell & Co., to-wit: collecting 
 and converting sufficient of said remaining assets into money 
 to pay the debts and all expenses of closing said business, are 
 alone authorized to sign the name of the firm of Cooley, Far- 
 well & Co. in liquidating the firm's business; and, to do this, 
 
 7. Wads worth agrees to give a power of attorney to 
 Cooley & Farwell, and to each of them, to execute all papers 
 necessary in the disposal of any property, real or personal, that 
 may be acquired, or that was then on hand as assets of said 
 firm, in order for them to be facilitated in raising money from 
 said assets to pay the debts and all the expenses of closing the 
 business of the said firm of Cooley, Farwell & Co. 
 
 What then do the parties to this agreement respectively 
 recognize as done by it, and what do they severally take and 
 receive under the same? In answer to this question, we 
 reply : 
 
 1. Cooley, Farwvll & Wadsworth, and each of them, 
 recognize as a fact, that Wadsworth' s account was largely 
 overdrawn. 
 
 2. The firm of Cooley, Farwell & Co. sold the merchandise 
 on hand at the date of invoice, to-wit, ^January 9, 1862, to 
 Cooley & Farwell, at invoice prices.
 
 5 
 
 3. Wadsworth, on the 21st of January, 1862, sold, trans- 
 ferred and delivered to Cooley and Farwell his interest in the 
 said merchandise, at invoice prices, amounting to $161,041.89, 
 said sale to take effect as of January 9, 1862. 
 
 4. Wadsworth sold, transferred and released unto Cooley 
 & Farvvell, all his interest in profits on sales of merchandise 
 from and after January 9, 1862, and up to the 1st day of Feb- 
 ruary, 1862. 
 
 5. The said merchandise, so sold as aforesaid to Cooley & 
 Farwell, was to be charged to the private accounts of Cooley 
 and Farwell, on the books of Cooley, Farwell & Co. 
 
 6. Cooley & Farwell took the said merchandise at invoice 
 prices, as so much of the unconverted assets belonging to the 
 firm of Cooley, Farwell & Co. 
 
 7. Wadsworth received [notice the language in the agree- 
 ment, to-wit : whereas, E. S. Wadsworth has received the 
 notes of the firm of C., F. & Co. for $10,000] from the firm of 
 Cooley, Farwell & Co., the sum of $10,000, which was charged 
 to his private account. 
 
 8. The profits of the firm of Cooley, FarweH & Co. were 
 determined that is, the profits were ended, closed. 
 
 9. The sale of the merchandise to Cooley & Farwell, as 
 aforesaid, determined, ended, closed the profits of the firm of 
 Cooley, Farwell & Co. 
 
 10. The firm" of Cooley, Farwell & Co. was dissolved 
 before the time of its limitation by the mutual agreement of 
 all the partners, and such dissolution to take effect as of the 
 9th of January, 1862. 
 
 11. The business of the said three firms was arranged for 
 being finally closed, and all matters of account between the 
 said partners, pertaining to said three firms, finally settled. 
 
 12. Cooley & Farwell, by the agreement of all the part- 
 ners, took possession of all the remaining assets (that is, of 
 all the assets that remained after the said merchandise of 
 $161,041.89 was charged to Cooley & Farwell's account), and 
 the said three firms of Cooley, Wadsworth & Co., No. 1 and 
 2, and Cooley, Farwell & Co., and not disposed of. 
 
 13. Wadsworth was relieved from all labor in collecting 
 the assets to pay the debts of Cooley, Farwell & Co., and 
 from looking after the payment of said debts. This was not 
 small consideration^ surely.
 
 14. Cooley <fc Farwell were to take upon themselves the 
 labor of paying the debts and the expenses of closing the 
 business of the firm of Cooley, Farwell & Co., with or out of 
 the said remaining assets. And this was not a small under- 
 taking, surely, and especially at that time. 
 
 15. Wadsworth released all his interest in profits made on 
 sales of merchandise from and after the 9th day of January, 
 1862, to the 1st day of February, 1862, to Cooley & Farwell. 
 
 1G. Wadsworth Avas relieved and released by Cooley A: 
 Farwell from all labor or effect about raising or loaning money 
 to pay the debts of Cooley, Farwell & Co. 
 
 17. The assets the said remaining assets of the said three 
 firms, were to be held and used in paying the debts and the 
 expenses of closing the business of the firm of Cooley, Far- 
 weU & Co. 
 
 18. Cooley & Farwell were to hold and use, as the trustees 
 of the said firms, the said remaining assets. First, to pay the 
 debts of Cooley, Farwell & Co. Second, to pay all expenses 
 of closing the business of the said firm. Third, after the pay- 
 ment of the said debts, Cooley & Farwell, as the said trustees, 
 were to surrender their trust, and then the remaining assets 
 were to be divided between the partners, pro rata, according to 
 the amount due to each. 
 
 19. Cooley & Farwell, as trustees for said purpose, were 
 to proceed and convert so much of the said remaining assets 
 so placed in their hands by the said three firms, as would be 
 sufficient to pay debts and to close the business of the firm of 
 Cooley, Farwell & Co. 
 
 20. The moneys so realized from said remaining assets 
 were to be appropriated by Cooley & Farwell to pay the 
 debts and all expenses of closing the business of the firm of 
 Cooley, Farwell & Co. 
 
 21. To enable Cooley & Farwell to convert so much of 
 said remaining assets into money, as would be sufficient to pay 
 the said debts and expenses of closing the business of the firm 
 of Cooley, Farwell & Co., Wadsworth gave to Cooley & Far- 
 well his power of attorney to act for him and in his stead, and 
 to sign his name to all instruments in all matters necessary to 
 close said business and pay said debts. 
 
 21st. The remaining assets were to be by the said several 
 partners divided between them, pro rata, according to the 
 amounts due to each that is, each partner was to take in
 
 assets his interest in the vihole amount of assets so remaining, 
 and each of the others were to release their interest in the por- 
 tion, that should under the division fall to each. 
 
 :.'2d. This agreement then supersedes all the previous agree- 
 ments made by and between the said partners, including the 
 several copartnership articles of agreement, and from that time 
 it was the only agreement between them, and was a full and 
 final settlement of all copartnership matters of the said three 
 firms then remaining unsettled. This agreement took all mat- 
 ters between them not only out of all preceding agreements, 
 but out from the control of the law governing all other or pre- 
 ceding agreements. Rules that would have controlled the 
 former agreements, touching the refunding of capital contri- 
 buted to the capital of the unsettled firms, have nothing to do 
 in regulating their several rights under this new and final 
 agreement, for it prescribes the rights of each partner, and- the 
 disposition of the remaining assets after the debts are paid 
 between them. By this agreement the rights of the several 
 partners in said remaining assets are thrown into hotch-potch 
 that is, their capital and profits without distinction are 
 thrown into one fund and were called assets ; and then they 
 agree upon the mode of separating such interests, or assets, 
 to wit, by dividing them, prorata, between the partners accord- 
 ing to what is due to each partner, or according to the interest 
 of each partner in the gross amount. To do this they may 
 agree upon a division of said remaining assets, or the assets 
 may be sold at auction, and then the avails so divided. 
 
 We cannot go behind this Agreement, unless it is mutually 
 surrendered by all the parties to it, or it is impeached by posi- 
 tive evidence of fraud. 
 
 I. The complainant must make a positive charge of fraud 
 against Cooley and Farwell, or one of them, in making the same. 
 
 II. Complainant must charge that representations were 
 made by Cooley & Farwell to him which were false and 
 fraudulent, and were material, and that he relied on them, and 
 that he had no other means of knowing or learning the truth- 
 
 O O 
 
 fulness or falsity of the same, except from them. 
 
 III. Complainant must then introduce positive evidence 
 that his charges and averments are true. 
 
 To ascertain these particulars, we must look into the com- 
 plainant's bill of complaint and his evidence to sustain his 
 charges.
 
 8 
 
 We will examine the principal allegations in his bill of com- 
 plaint and enquire into the proof to see whether that sustains 
 them, or either, and which of them. 
 
 1st Allegation. On page 2, complainant states, " that he 
 " and Wm. H. Phelps, in the year 184-8, formed a copartner- 
 " ship under the firm name of Wadsworth & Phelps, and con- 
 "tinued in business until March 1st, 1851, when this firm was 
 " dissolved (page 3) and that complainant and Phelps, feeling 
 " that the good will of the business was too valuable to be lost, 
 " they resolved to form a new firm, with Francis B. Cooley and 
 " John V. Farwell as partners with them, that Cooley had but 
 " a small capital and a very limited business experience as 
 " clerk in his father's store in an obscure town in New Eng- 
 " land." The answer of defendant denies these allegations. 
 
 O 
 
 Are they true under the evidence ? 
 
 Wm. H. Phelps testifies on page 440, ans. to the 3d int., 
 " that the firm of Wadsworth & Phelps was organized in 1848 
 " and continued 3 years. That it was organized by Wads- 
 " worth & Phelps, with a capital stock of $40,000. Of this 
 " Phelps paid in money $20,000, and Wadsworth paid his in 
 " goods, that the profits and losses were borne equally. That 
 " Francis B. Cooley entered this firm 6 or 8 months after its 
 " formation, by purchasing half of Wadsworth's interest 
 " therein, and he drew profits in that proportion. 
 
 On page 43. ans. 16, Phelps testifies, " that at the time of 
 " the dissolution of this firm, Mr. Wadsworth and himself con- 
 " eluded to wind up the business." On the same page 443, ans. 
 to 17 int. he further testifies, "that on the dissolution of this 
 "firm, Cooley, Farwell and himself decided to form a co- 
 partnership under the name of 'Cooley, Phelps & Co.,' 
 " composed of Cooley, Phelps & Farwell." On page 444, in 
 his ans. to the 19 and 20 intg's, he testifies, " that the said firm 
 of Cooley, Phelps & Co., was soon changed so as to admit 
 Wadsworth as a partner, but he cannot say at whose instance 
 it was done." 
 
 On page 446, ans. to the 35 and 36 intg's, he says, " that the 
 consideration of Wadsworth's admission into the firm was the 
 capital he paid in, which he derived from his portion of the 
 goods and perhaps collections of the former firm." On page 
 447, ans. 41 and 42, he testifies, that the original capital of 
 Wadsworth in the firm of Wadsworth & Phelps, consisted of 
 goods which Wadsworth bought on a credit of from 8 to 12 
 months."
 
 Joseph S. Miles testifies on page 668, inty. 18, " that there 
 were three partners in the firm of Wadsworth & Phelps, to- 
 wit : Elisha !S. Wadsworth, William H. Phelps and Francis B. 
 Cooley." 
 
 The testimony then impeaches this allegation of the Bill as 
 follows : 
 
 1. By making Cooley a partner in the firm of Wadsworth 
 & Phelps. 
 
 2. In showing that his capital and interest in this firm was 
 equal to Wadsworth. 
 
 3. In proving that Wadsworth had no intention at the close 
 of this firm to continue its business ; but, on the contrary, Mr. 
 Wadsworth had concluded at and before the time of the disso- 
 lution of this firm to wind up the business. 
 
 4. In showing that at the close of this firm, Gooley, Phelps 
 & Far well formed a new copartnership under the firm name of 
 Cooley, Wpi mi nth, Phelps & Co. 
 
 5. In showing that Phelps did not regard the good will of 
 Wadsworth too valuable to be lost, for he made his arrange- 
 ments without regard to the same, to go on with the business 
 with Cooley & Farwell as partners. 
 
 6. In showing that there was no resolution on the part of 
 Phelps & Wadsworth to form a new firm with Cooley & Far- 
 well as their copartners. 
 
 7. In showing that, without even consulting Wadsworth, 
 Cooley, Phelps and Farwell formed a new copartnership to 
 carry on said business under the name of Cooley, Phelps & 
 Co., and that Wadsworth had nothing to do or say about its 
 formation. 
 
 8. In showing that Wadsworth was not admitted to this 
 firm until after it was organized. 
 
 9. In showing that the firm name of Cooley, Phelps & Co., 
 when Wadsworth was admitted as a partner therein, was 
 changed to that of Cooley, Wadsworth, Phelps & Co., with a 
 capital of $30,000 ; and that of this capital, Cooley paid in 
 $16,000, Phelps paid in $8,000, Wadsworth paid in $5,000, 
 and Farwell paid in $1,000. It will also be remembered that 
 Mr. Spink testifies that Farwell afterwards in fact paid the sum 
 of $1,000 additional capital into this firm.
 
 10 
 
 SECOND ALLEGATION OF BILL. 
 
 On page 2, complainant alleges, " that he took an active 
 and leading part in the business of the said firms, and acquired 
 an extensive acquaintance among merchants and farmers 
 through the North-west, and among the principal importers 
 and wholesale dealers and manufacturers in Eastern cities, 
 and likewise acquired a wide-spread credit and influence ; and 
 that complainant's firms were sought after by both buyers and 
 sellers ; so that they were enabled to buy and sell to great ad- 
 vantage, and that the credit, influence and good will of com- 
 plainant were of great value." 
 
 On page 3, he alleges, "that Farwell, when .he entered 
 into the employ of the firm of Wadsworth & Phelps, was a 
 very young man, without capital or credit, and with no 
 valuable business acquaintance, and that his knowledge of 
 business was very limited; but he admits that he had consid- 
 erable industry and capacity for business, and inspired com- 
 plainant with the utmost confidence in him." And on page 3, 
 he says, " Cooley's capital was small and his experience 
 limited." 
 
 On page 8, he says, " that mainly owing to his (Wads- 
 worth's) credit and influence, the firms, to-wit : Wadsworth & 
 Phelps, Cooley, Wadsworth & Co., Nos. 1 and 2, C. N. 
 Henderson & Co., and Cooley, Farwell & Co., transacted a 
 large and profitable business, and that thereby (that is, by 
 complainant's credit and influence,) Cooley & Farwell were 
 enabled to amass a considerable fortune." 
 
 On page 14, he says, " that in the spring of 1859, Cooley & 
 Farwell acquired a little independent credit of their own, and 
 " by their attention to the business of the said firm of Cooley, 
 " Farwell & Co. had become acquainted with buyers and sell- 
 " ers east and west, and in a manner, had become independent 
 " of complainant." 
 
 On page 5, complainant alleges " that he was exempt from 
 " active duty in the business, because his credit and influence 
 " were indispensable in the prosecution of the business and 
 " were far more valuable than the services of the active part- 
 " ners." By these allegations, complainant seeks to establish 
 before this Court : 
 
 1. That the firms of Wadsworth & Phelps, Cooley, Wads- 
 worth & Co., and C. N. Henderson &> Co., and in fact Cooley,
 
 11 
 
 Harwell & Co., were formed and established upon complain- 
 ant's credit with eastern manufactures, importers and whole- 
 sale dealers. 
 
 2. That complainant, up to the spring of 1859, was the 
 active and leading business man in all these firms, and that 
 therefore his influence over the trade of the North-west, was 
 the principal influence in behalf of said firm's business. 
 
 3. That Cooley & Far well, up to the spring of 1859, had 
 but a very small capital, and no credit, no business experience, 
 and no influence, that was of any advantage to said firms or 
 either of them. 
 
 These are surely modest pretensions. The answer denies 
 these allegations. Does the evidence sustain them or either 
 and which of them V Complainant has not introduced a single 
 witness to prove either of these assumptions. In this respect 
 or upon these points he has in fact abandoned his complaint. 
 The defendants have evidence upon these points we will ex- 
 amine it. ' 
 
 For his (Wadsworth's) credit and influence with eastern 
 manufactures we call especial attention to the testimony of 
 Hiram Pierce, on page 455, and that of Pomeroy Higley, on 
 page 477, of printed evidence. 
 
 Mr. Pierce testifies on page 455-6, inty's 3, 4 and 5, " that 
 " Seth Thomas, of Plymouth, Conn., from 1823 to 1858, was in 
 " that place a manufacturer of cotton sheeting and clocks, and 
 " the largest business man of the place, and that he sold his 
 " cotton goods through commission merchants and by himself 
 " in Hartford, Conn., New York and Philadelphia, and also in 
 "the Middle and Western States and in New England." 
 
 On page 456-7-8, he further testifies, " that Seth Thomas 
 " owned lands in Cook County, 111., and that complainant was 
 "his agent, and that in 1852, complainant as agent of Thomas, 
 " (see inty. 11, page 459,) informed Thomas that he had a frac- 
 tional 40 in Cook Co., and that he had. had an ofler of $75 
 "for it, and that complainant had offered it for $100, and 
 " asked Mr. Thomas if he should sell it for $75. He also, at 
 " this time, informed Thomas that he had found adverse claim- 
 " ants. Mr. Thomas replied, ' i know very little of the mat- 
 " ter, therefore confide in your (complainant's) opinion.' 
 " Complainant sold this land to Jno. Woodbridge, jr., for $75, 
 " and sent a Warranty Deed to Thomas for him to execute.
 
 12 
 
 "The consideration in the deed was $600, instead of $75. 
 " Mr. Thomas refused to execute the deed, and directed com- 
 "plainant to execute a quit claim deed to him, which he did. 
 " See the correspondence and deed on pages 470 to 475 inclu- 
 "sive.) Some time after this, Mr. Higley, another agent of 
 " Thomas, informed him (Thomas) that if he had not sold the 
 " land, not to sell it, as it had become of great value. Mr. 
 " Thomas said he had been defrauded by the representations 
 " of Wadsworth that he had represented this land as 4 acres, 
 " when in fact it was 5 acres, by which he inferred the land 
 " lay out of the city of Chicago. Mr. Woodbridge conveyed 
 *' half of it to Mr. Wadsworth's wife. Mr. Thomas regarded 
 " this a conspiracy between Wadsworth and Woodbridge to 
 "obtain the land for a small sum of money. Mr. Thomas 
 " brought a suit in the United States Court at Chicago against 
 " Wads\vorth and Woodbridge to recover this land. Mr. 
 "Sedgwick (a railroad agent) wanted to purchase this land of 
 " Mr. Thomas, and said that Woodbridge's claim with others 
 "in Chicago, would cost him $1 1,000, and Thomas' claim at 
 "$7,000, as would make the land worth $18,000." (See cross- 
 int. 4 and 6. page 460.) 
 
 Mr. Pierce says in ans. to 16 int., page 459, " that the effect 
 " of this transaction upon Mr. Thomas, was to convince him 
 " (Thomas) that Wadsworth had committed a breach of trust, 
 " and that he had deceived him ; and that this transaction was 
 " known in Hartford, Conn., and that Mr. Thomas took no 
 " pains to conceal it, and that depositions in the case were 
 "t.iked before the Mayor of Hartford, and the transaction was 
 "generally known by the people in Plymouth." Inty's 17 
 and 18, page 459. 
 
 " On page 479, inty 4, Mr. Higley testifies, " that the railroad 
 "agent proposed to pay for this land $19,000. Mr. Thomas 
 "was to have 89,000 and Woodbridge $10,000. Mr. Thomas 
 "claimed the $10,000, and finally, he (the H. R. agent) gave 
 " Thomas for his suit claim $7,000 and a note for $500." (See 
 cross-in t. 25, page 483-4.) 
 
 On page 480, inty 6, Higley testifies, " that the effect of this 
 " trmsaction upon the credit of Wadsworth was that Mr. 
 " Thamas lost confidence in him." 
 
 On page 48 1-, int. 7, Mr. Higley testifies, "that this land was 
 " situated in the city of Chicago."
 
 13 
 
 Mr. Spink testifies (see page 222, cross-inty 196), " that some 
 " time in 1858, Mr. Wads worth's circumstances were consid- 
 " ered rather precarious and his credit far from being as good 
 " as it had been. He raised some money by his credit being 
 ' assisted by collaterals." Page 198. 
 
 Mr. Parks testifies on page 368, inty 0, " that Mr. Wads- 
 " worth never took an active part in the business of Cooley, 
 " Wadsworth & Co., while he was with them, and he entered 
 " the employ of this firm in August, 1852, and continued about 
 " two years." Page 366, inty 3. 
 
 Mr. Parks, on page 376, inty 37, refuses to answer as to the 
 confessions of complainant to him as to his ability and dis- 
 ability to pay his (complainant's) debts. 
 
 Mr. Phelps testifies, on page 441-2, inty 3, 8, 9, 10, 11, 12, 
 and 13, that "for the first 6 months, Mr. "Wadsworth (after 
 " 1848, inty 3) gave his personal attention to the business when 
 " in town, after that, he did not confine himself to the business. 
 " At this time Wadsworth had some acquaintance and some 
 "influence. When I first went there (1848) Wadsworth had 
 " the control of business, but after the first 6 or 8 months, I 
 " had the control. Mr. Wadsworth (12) gave very little of his 
 " personal attention to the business after the first six months in 
 " any respect. He devoted his attention, I suppose, to his own 
 " private business (13)." 
 
 He further testifies on page 445, inty 30, " that Mr. Cooley 
 " and Mr. Farwell took the general supervision and control of 
 " the business of the firm of Cooley, Wadsworth, Phelps & Co. 
 " at Chicago, and Mr. Phelps bought the goods in New York. 
 " Mr. Wadsworth employed his time, I suppose, in his private 
 "business (see page 446, inty 31)." 
 
 On page 446, inty 35, he testifies, " that the consideration in 
 " fact that caused Phelps, Cooley & Farwell, to admit Wads- 
 " worth into the firm of Cooley, Phelps & Co., was his (Wads- 
 " worth's) capital, of course" 
 
 William Lovejoy, of Boston, testifies on page 453, int'y 22, 
 " that he knows nothing of the responsibility or basis of Wads- 
 " worth's credit. I heard a report (int'y 25) that Wadsworth's 
 "liabilities did not exceed $150,000, (this was in 1861). 
 
 Simeon Farwell testifies on page 622-3-4, int'y 3, 4, and to 
 the 18 inclusive, "that he commenced with the firms of Cooley, 
 " Wadsworth & Co., No. 1 and 2, and continued till the close ^
 
 14 
 
 " of those firms, and then continued on with Cooley, Farwell 
 " & Co., till the 25th October, 1857, as clerk, bookkeeper and 
 " traveling agent; and that during that time Cooley & Farwell 
 " were the active partners. Cooley was in New York most of 
 " the time, Mr. Wads worth attended to all appearance to his 
 " individual business. John V. Farwell had the control and 
 " direction of the business in Chicago and Cooley in New 
 " York. Farwell had the acquaintance with the customers 
 " and the influence over customers by himself and clerks. 
 " Customers enquired for Mr. Farwell, and new ones had to 
 " pass through his hands to get credit. Mr. Farwell gave to 
 " salesmen and traveling agents their instructions. Mr. Wads- 
 " worth during the time I was there had no connection with 
 " the active business of either of the firms ; his acquaintance 
 " with country merchants was very limited." 
 
 C. B. Farwell testifies on page 638, int'y 4, " that J. V. Far- 
 " well in the fall of 1857, came to me, and wanted me to 
 " endorse the paper of the firm of C., F. & Co., which I did in 
 ' about $100,000, and that the complainant had promised to 
 " furnish capital or facilities, instead of which the firm was 
 " obliged to provide for some $25,000 of complainant's paper." 
 
 Joseph S. Miles testifies on page 656-7-8, int'y 3, " that he 
 " was with the firms of C., W. & Co., No. 1 and 2, from March 
 " 1, 1851, to the 1st of February, 1857, as salesman. Cooley 
 " and Farwell had the principal charge of the business (4). 
 " Mr. Wadsworth did not have a great deal to do with the 
 " customers. He did not take an active part in the business 
 " (5 and 6). Wadsworth never traveled in the country to col- 
 " lect debts, nor did he sell goods ; he took no active part in 
 " the business. Mr. J. V. Farwell made considerable effort to 
 " introduce customers and introduced a good many (13). Far- 
 " well came from the house of Hamlin & Day, wholesale deal- 
 " ers in dry goods in Chicago. Int'y 25, 26, 27, 28, 29. He 
 " was with them several years. Int'y 33. Cooley, I suppose, 
 " had money and some credit. Int'y^4. John V. Farwell was 
 " bookkeeper for the firm of WadsAvorth & Phelps, and trav- 
 " eled in the country to collect debts. Int'y 36. The active 
 " partners of the firm of Wadsworth & Phelps, were Phelps 
 " and Cooley. Int'y 19. When I first commenced work for 
 " the firms, there were perhaps three or four customers to 
 " whom Wadsworth would occasionally sell goods to, and it
 
 15 
 
 " was only for a short time that he pretended to sell goods 
 " (20). There was no other branch of the business that Wads- 
 " worth cared for. He was about there most of the time (21). 
 " When I first went to work for them, Phelps was the principal 
 "manager of the business (23). Wadsworth appeared ac- 
 " qainted with quite a number of the old customers. The 
 "trade was made after the first few months, and of the new 
 " customers, I don't think he knew very much about them, as 
 " he did not take an active part among them (24). The active 
 "partners in the firm of Cooley, Wadsworth, Phelps & Co., 
 "were Cooley, Phelps and Farwell (26). Wadsworth had 
 " had considerable outside (private) business. I don't know 
 " what it was, I don't think he spent much of his time on the 
 "business of the firm (27). Cooley and Farwell made the 
 " acquaintance of the new customers, I think they all passed 
 " through Farwell' s hands in obtaining credit (28). The active 
 "partners in the 1st and 2d firms of Cooley, Wadsworth & 
 " Co., were Cooley and Farwell (29). The acquaintance of 
 " country merchants was made by traveling about the country 
 " and at home (32). Cooley, Farwell, Parks, Akin, Simeon 
 " Farwell and myself performed these services (33). Mr. Far- 
 " well was the most influential among the customers during 
 " the existence of Cooley, Wadsworth & Co., No. 1 and 2 (34). 
 " Farwell's business reputation was good during the firm of 
 " Wadsworth & Phelps (35). Mr. Farwell's business qualifi- 
 " cations were good (36). 3. Mr. Farwell, when he went into 
 " the employ of the firm of Wadsworth & Phelps, was not very 
 " wealthy. I don't know whether he had $1,000 or $5,000, or 
 " more than that ; I believe he had a house and lot and a few 
 " hundred dollars in money (38). I suppose at this tune his 
 " reputation was as good as any young man of his means (39)." 
 
 On page 313, int'y 67, C. M. Henderson testifies, "that he 
 " does not think Wadsworth knew anything of the business 
 " standing of country merchants buying in Chicago." 
 
 By this testimony the allegations last referred to are found 
 untrue, as follows : 
 
 1st. By showing that Wadsworth's credit was not an essen- 
 tial in the agreements, by which the firms of Wadsworth & 
 Phelps, Cooley, Wadsworth, Phelps & Co., Cooley, Wads- 
 worth & Co., No. 1 and 2, Cooley, Farwell & Co., and C. X. 
 Henderson & Co. were formed.
 
 1C 
 
 2d. By showing that whatever of credit he might have had, 
 if any, with eastern manufacturers, importers and wholesale 
 f/^ . _~ merchants, by his own foolish, if not fraudulent act, as the 
 agent of Seth Thomas, in selling his land for $75 to his brother- 
 in-law, and by his brother-in-law, therefore, conveying half of 
 the same to Wadsworth's wife, when at the time the land was 
 worth from 18 to 20,000 dollars, had been greatly impaired or 
 wholly lost. 
 
 3d. By not showing affirmatively that he had any credit 
 with eastern manufacturers, importers and wholesale dry goods 
 merchants. 
 
 4th. By showing, that from 1848, when the firm of Wads- 
 worth & Phelps was formed, to the 2 1st of January, 1862, when 
 the firm of Cooley, Farwell & Co. was dissolved, that com- 
 plainant had little or nothing to do with the business of those 
 and the intermediate firms, and little or no influence over their 
 business and customers. 
 
 5. By showing that Phelps and Cooley were the active and 
 leading partners in the firm of Wadsworth & Phelps, and were 
 the men of influence in that firm's business. 
 
 6. By showing that Cooley, Farwell & Phelps were the 
 only active and leading business partners, whose influence were 
 of any value to the business interests of the firm of Cooley, 
 Wadsworth, Phelps & Co. 
 
 *7. By showing that Cooley and Farwell were the only ac- 
 tive, influential and leading business partners in the firms of 
 Cooley, Wadsworth & Co., Nos. 1 and 2, and Cooley, Farwell 
 <fc Co. 
 
 8. By showing that the customers were made by Cooley & 
 Farwell, and their clerks. 
 
 9. By showing that Wadsworth had no valuable influence 
 over customers in the Northwest, or with the customers "of 
 either of said firms. 
 
 10. By showing that Cooley and Farwell, by their own 
 labors, perseverance, business tact and capacity, accumulated 
 what they did. 
 
 11. By showing that Cooley's capital in the firm of Wads- 
 worth & Phelps, was equal to Wadsworth's, and in all the said 
 subsequent firms it was much greater than his. 
 
 12. By showing that Farwell had capital, and business 
 credit, and influence, and capacity, and that he gave his whole 
 attention to the business of the said firms.
 
 17 
 
 1 3. By showing that Cooley and Farwell had the principal 
 business experience, and influence, and credit, and that Wads- 
 worth, in capital, was second to Cooley, and that in all other 
 respects he was of little or no advantage to the business of 
 either of the said firms. 
 
 14. By showing that the capital which he invested was the 
 sole consideration of his being admitted to said partnerships. 
 
 15. By showing that Farwell, years before he became the 
 clerk of the said firm of Wadsworth & Phelps, was in active 
 business in Chicago with the wholesale dry goods firm of 
 Hamliu & Day, and at that time controlled a large trade in 
 Chicago. 
 
 16. The fact that complainant was released from service 
 simply because he agreed to put in more capital than Farwell, 
 and that Farwell' s time and capital were to balance complain- 
 ant's capital, and thereby complainant and Farwell were to 
 have each a quarter's interest in the profits, proves his allega- 
 tion, as to his great credit and influence, to be without foun- 
 dation. 
 
 ] 7. His failure to make good this allegation by proof, is 
 evidence that it was not to be found. 
 
 THIRD ALLEGATION. 
 
 On pages 6 and 7, he alleges, among other things, " that 
 "about the 15th of August, 1851, with Charles N. Henderson 
 " & Cooley, he formed a copartnership for the transaction of 
 " the wholesale boot and shoe business in Chicago, under the 
 " firm name of C. N. Henderson & Co., upon a capital of 
 " $20,000 : Henderson to furnish $15,000, and Cooley and him- 
 " self the remaining $5,000, and that Cooley and himself were 
 " to discontinue the boot and shoe trade of Cooley, Wads- 
 " worth & Co., and that all profits and losses to be equally 
 " shared between Henderson of one .part and Cooley and him- 
 " self of the other part; and that Henderson was content to 
 " subscribe and pay three-fourths of the capital stock of this 
 "firm, and do all the work of the firm, and divide the profits 
 " equally with Cooley and himself, because of tint value of 
 " complainant's-credit and influence, and because such credit 
 " and influence were worth more to the said firm than the scr- 
 " vices and capital of Henderson ; and that Farwell was not a 
 " partner in this firm and had no interest therein." On page 8 
 of bill, he further alleges "that he fully paid up the amount of
 
 18 
 
 " his said capital stock in the firm of C. N. Henderson & Co., 
 " and that he performed all other duties ; and that mainly 
 " owing to his credit and influence, the said firms of Cooley > 
 " Wads worth & Co., and C. N. Henderson & Co., transacted 
 " a large and profitable business, and that Cooley, Wadsworth 
 " & Co. were thereby enabled to commence with and maintain 
 " the position of the largest wholesale dry goods house in the 
 " city of Chicago, and thereby also Cooley, Farwell & Co. 
 " were enabled to amass a considerable fortune." 
 
 The defendants deny this allegation, and affirm on the con- 
 trary, that a copai'tnership was formed between Charles N. 
 Henderson, of one part, and the firm of Cooley, Wadsworth 
 & Co., of the other part, under the firm name of C. N. Hen- 
 derson & Co., to carry on the wholesale boot and shoe trade 
 in Chicago, at about the time mentioned in said allegation, 
 with a capital of $20,000, and that said Henderson paid into 
 the same the sum of $15,000 as his share, and the said firm of 
 Cooley, Wadsworth & Co., the sum of $5,000 as its share ; 
 and that Henderson had a half interest in the profits and losses, 
 and the said firm of Cooley, Wadsworth & Co. the other half 
 interest in profits and losses ; and that it was the credit and 
 influence of the said firm of Cooley, Wadsworth & Co., and 
 its relinquishment of that branch of their business that induced 
 the said Henderson to consent to the said apparent inequality 
 of terms. 
 
 Here we find an issue wide apart, and the truth or falsity of 
 the several allegations is with one side or the other; both can- 
 not be true. Where does the evidence place the truth ? 
 
 Mr. Spink testifies on page 144-5, inty 129, " that he had 
 examined the stock account of the firm of C. N. Henderson *fc 
 Co., on the books of that firm. They (the said books) show 
 that the firm (C. N. Henderson & Co.,) was composed of 
 C. N. Henderson and Cooley, Wadsworth & Co.; and that the 
 firm seems to have been formed on the 18th of August, 1851, 
 and that Henderson paid in the sum of $15,000, and Cooley, 
 Wadswortli & Co. the sum of $5,000, making a capital stock 
 of $20,000. That the profits ($56,042.42) were divided on the 
 1st of March, 1852, and on the 1st of February, 1853, and on 
 the 1st of February, 1854, and on the 1st of January, 1855, 
 and on the 30th of June, 1855, equally between C. N. Hender- 
 son and Cooley, Wadsworth & Co. On the date last afore-
 
 said, the credit balance of the stock accounts of the members 
 
 of the said firm was as follows : 
 
 C. N. Henderson, $13,163.59 
 
 Less private acc't, 3,133.69 
 
 810,029.90 
 
 That of Cooley, Wadsworth & Co., $34,188.82 
 
 On the 1st day of March, 1859, C. N. 
 
 Henderson's credit balance was - $8,949.10 
 Cooley, Wadsworth & Co., 19,244.10 
 
 $28,193.90 
 
 On the 23d of March, 1856, a charge of $2,161.59 was made 
 
 to profit and loss, and half of that amount was charged to each 
 partner, that is, one-half to C. N. Henderson, and one-half to 
 the firm of Cooley, Wadsworth & Co. 
 
 On the 30th of March, 1859, the sum of $13,000 for notes 
 and accounts is charged to Cooley, Wadsworth & Co. in stock 
 account, reducing their balance to $6,244.10. 
 
 Inty 130. He says, "that previous to the said charge of 
 $13,000 to the account of Cooley, Wadsworth & Co., there 
 would be due from Henderson to the firm of Cooley, Wads- 
 worth & Co., the sum of $5,147.50, without computing any 
 interest on either of the accounts after June 30, 1855 ; had in- 
 terest been computed, the amoifht to be paid by Henderson to 
 equalize the accounts would have been greater." 
 
 Inty 131, page 146. He testifies "that the said entry of 
 -si :>,000, which he finds in the books in the stock* account of 
 Cooley, Wadsworth & Co., in the ledger only, and it appears 
 that this charge was taken from page 167 of the journal, and 
 this journal page is cut out from the journal." 
 
 On page 147, inty 133, he testifies " that the signature to the 
 paper which I append, marked 'Exhibit No. 13, of E. S. 
 Wadsworth for C. N. Henderson & Co.' is in the hand writing 
 of Elisha S. Wadsworth. S:iil exhibit No. 13, is as follows : 
 SIMEOX FARAVELL, Trustee : 
 
 You will release the mortgage from James M. Kidd to you, 
 for our benefit. 
 
 COOLEY, WADSWORTH & CO., 
 E. S. WADSWORTH for 
 
 C. N. HENDERSON & CO. 
 
 CHICAGO, January 29, 1863."
 
 20 
 
 / 
 
 (See, also, exhibit No. 14, on page 224, and ihty 192, page 
 221.) 
 
 Henry T. Helm, on page 229, inty 3-4-5, testifies, " to the 
 application of Cooley for letters of administration upon the 
 estate of C. N. Henderson, deceased, by C. M. Hawley, his 
 attorney, which petition leaves the name of Farwell erased, 
 wherein it was written as a partner of the firm of C. N. II. & 
 Co. See ' exhibit A,' to Helm's deposition ; page 237, inty 1-2 
 -3. Mr. Farwell was present on one occasion when the matter 
 came up. His appearance was that of an interested party ; 
 they consulted together, but F did not hear what was said. 
 
 On page 232, inty 4, he testifies, " I only know who com- 
 posed the firm of C. N. Henderson & Co. from information 
 from Charles N. Henderson. Mr. Henderson placed in my 
 hands two claims against Faucher & Halleck, to be sued. He 
 gave me on a piece of paper the names of the members of the 
 firm of C. N. Henderson & Co., and those names were Charles 
 N. Henderson, Francis B. Cooley, Elisha S. Wadsworth and 
 John V. Farwell. Subsequently other claims were placed in 
 my hands by him, which I sued in the names of those four 
 persons. I bought the interest of Henderson in one of the 
 judgments I obtained, and he (Henderson) assigned the Sher- 
 iff's certificate of sale of land^and sent me to Cooley, Wads- 
 worth and Farwell for their signatures thereto, and it was 
 signed by Cooley and Farwell Wadsworth not being present, 
 Farwell signed his name for him. Mr. Henderson spoke more 
 frequently of Farwell's being a partner than of the others, and 
 especially at the close of the firm, as Henderson, at the time 
 of the dissolution, negotiated with Farwell." 
 
 On page 235, inty 7-8-9, he testifies, "that the files shown 
 him appear to be the files in the case of C. N. Henderson and 
 others against Algernon S. Vail, commenced on the 22d day 
 of December, 1853, in the Cook County Court of Common 
 Pleas, and they consist of a proecipe, summons, declaration, 
 account, execution and affidavit of John V. Farwell. The At- 
 torneys who commenced the suit and filed the papers in behalf 
 of the plaintiffs, is John Woodbridge, Jr., and Mr. Wood- 
 bridge informs me that the same are in his l)#nd-writing, and, 
 the plaintiffs are Charles N. Henderson, Francis B. Cooley, 
 Elisha S. Wadsworth and John V. Farwell, the firm of C. N. 
 Henderson & Co."
 
 21 
 
 Edmund Burk, complainant's witness, on his direct exam- 
 ination on page 245, inty 11, testifies, " that since the death of 
 C. N. Henderson, the firm of C. N. Henderson & Co. had real- 
 ized on its assets $58.00, and which was paid to Cooley, Far- 
 well & Co. for Cooley, Wadsworth & Co., March 1, 1859, 
 and the voucher received therefor is as follows : 
 
 "CHICAGO, March 1, 1859. 
 
 " Received of C. N. Henderson & Co., by the hand of 
 
 " Fifty-eight dollars, to apply on stock account. 
 
 "COOLEY, FARWELL & CO., for 
 
 " COOLEY, WADSWORTH & co., 
 
 LEITER." 
 
 Leiter was the book-keeper for C. F. & Co. 
 
 See also Exhibit C. to Burke, page 247, inty 21, by which 
 the firm of Cooley, Wadsworth & Co., are recognized again 
 by Wadsworth, as the partner of Henderson in the firm of 
 C. N. Henderson & Co. (It will be remembered that Mr. 
 Burk testified that he was the agent of Wadsworth to collect 
 the assets of the firm of C. N. H. & Co.) 
 
 On page 257-8, inty 56, Mr. Burk testifies, "that in the stock 
 account, on the first page of the ledger of the firm of C. N. 
 Henderson & Co., the entries are as follows : 
 Stock account, October 1, 1851, credit by sundries, $20,000.00' 
 March 1, 1851, credit by profit and loss, - 3,585.56 
 
 Inty 58, he testifies " that the original entry of this account 
 is as follows : 
 
 CHICAGO, October 1, 1851. 
 
 Sundries to stock account : 
 
 C. N. Henderson is to pay - $15,000 
 
 Cooley, Wadsworth <fc Co., is to pay ' 5,000 
 
 $20,000 
 
 Cross-inty 59, he testifies that on pages 869-70 of ledger of 
 C. N. H. & Co., the entries are as follows : 
 
 Page 369 is headed, C. N. Henderson, stock. 
 
 Page 370 is headed, Cooley, Wadsworth & Co., stock." 
 
 On page 280, inty 32, 33, 34, 35, 36, 37, 38, he testifies, " I 
 have been present at two interviews between Henderson and 
 Farjyell, from October, 1856, to January, 1859, in the office of 
 C. N. Henderson & Co. Farwell asked how Henderson got 
 along collecting said assets, and other general inquiries as to 
 them ; to which Henderson replied, very slowly, * and you had
 
 better take charge of them.' Mr. Farwell said 'they had bet- 
 ter remain.' I recollect of seeing Farwell examine the books 
 of C. N. H. & Co., and the pocket-book containing the assets 
 of C. N. II. & Co." 
 
 On page 283, cross. 174, he testifies, "that the' entries of 
 the stock in the journal and ledger correspond, and they are 
 posted, and read as follows : 
 
 "CHICAGO, October 1, 1851. 
 
 " Sundries to stock: 
 
 " C. N. Henderson is to pay % $15,000 
 
 " Cooley, Wadsworth & Co., is to pay - - 5,000 
 
 "Total - . 820,000 
 
 " I don't know whose hand-writing the journal entries are 
 " in ; they do not appear to be Mr. Farwell' s." 
 
 On page 284, cross. 175, he testifies, "that the books of ac- 
 count of C. N. Henderson & Co., show that C. N. Henderson 
 paid the $15,000, and that Cooley, Wadsworth & Co. paid the 
 said $5,000 into the capital stock of C. K Henderson & Co." 
 
 On page 289, cross. 200, 207, 208, he testifies, . " that on 
 page 370 of the ledger, and opposite the posting of the said 
 $13,000, (to the account of C. W. & Co.) there is reference to 
 page 1G7, and I find that the said page 167 to have been cut 
 out, and that my only explanation for its being cut out, if it 
 was done by me, is, that I might have made an incorrect entry 
 thereon." 
 
 To the cross-inty 208, " Why did you not erase an improper 
 entry (if you made one,) and then make the proper entry, in- 
 stead of cutting out the leaf?' He replies, " I don't know 
 that I did cut it out ; if I did, it contained an entry made with- 
 out instruction." 
 
 Cross-inty 209, he says, " If I cut it out, it was done at my 
 own option, as I cannot remember ever having any conversa- 
 tion with any one relative to that book previous to the com- 
 mencement of this deposition." 
 
 In answer to cross-inty 210, on page 290, " How did you 
 know that this was a wrong entry ?" he replies, " If I made 
 an entry on that book, I did what I had no business to do, 
 and that would have been a sufficient reason for me to cut it 
 out." Cross-int. 211. " It has always been my custom so to 
 do (that is, cut out leaves if a wrong entry is made therein.") 
 Cross-int. 212, " If I cut it out, I did it, I presume, at or about
 
 23 
 
 the time the entry was made." Cross-int. 213, " I don't know 
 what the entry was." Cross-int. 215, " I do not recollect of 
 ever cutting a leaf out of any ledger, journal or day-book." 
 Cross-int. 217, "I don't know who cut it out." Cross-int. 218, 
 " I have no recollection as to the*leaf, whatsoever." Cross- 
 hit. 219. " This forenoon, I believe, was my first knowledge of 
 its being cut out." Cross-int. 220, " The said entry of $13,000, 
 is the only entry of that amount ; the figures on the left of this 
 charge (to wit, page 167,) are mine. Cross-int. 221, " I should 
 not have been likely to have made said reference to the journal 
 entry if there had not been one.V 
 
 C. M. Henderson, complainant's witness. On page 304, I. 
 8, introduces the articles of dissolution, of the firm of C. X. 
 Henderson & Co., which he appends and marks " Exhibit A," 
 which is on page 351, and is made by C. N. Henderson, of one 
 part, and Cooley, Wadsworth & Co., of the other. (To it 
 are attached four seals ; but signed by Cooley, Wadsworth 
 and Henderson. Mr. Farwell is made a party to it, under the 
 name of C., W. & Co. ; but by mistake he omits to sign it. 
 The complainant, by introducing this article, has not thereby 
 proved it to have been adopted.) 
 
 On pages 1'and 2 of Appendix to Printed Evidence, and 
 attached to the deposition of James C. Aiken, marked " Ex- 
 hibit No. 2," is contained the original articles of said dissolu- 
 tion, and which is signed by all the partners of that firm, to 
 wit : C. N. Henderson, F. B. Cooley, Elisha S. Wadsworth, 
 and John V. Farwell. The omission of the name of Farwell 
 to the said "Exhibit A," to C. M. Henderson's deposition 
 (when a seal was prepared in the proper place for his signa- 
 ture), is evidently a mistake or an oversight. It may have 
 been, and probably was designed by the partners as a duplicate 
 copy of the original, and the signature of Farwell inadvert- 
 antly omitted. It will be noticed that the printed copy of this 
 " Exhibit A," on page 351 of printed evidence, omits to copy 
 the seal prepared for Farwell, and which is contained on the 
 said exhibit itself. 
 
 On page 305, I. 16, Mr. Henderson testifies that, " C. N. 
 Henderson, previous to his death, held interviews with Mr. ' 
 Farwell. 
 
 " In relation to the assets of C. 1ST. Henderson & Co., during 
 the time between the dissolution of said firm and Henderson's
 
 24 
 
 death (22), I have seen Farwell and Henderson examine the 
 assets of C. N. H. & Co. together, at different times." On page 
 305, I. 40, he testifies " That Cooley and Wadsworth applied 
 for letters of administration upon the estate of Henderson. 
 Mr. Helm also applied and was appointed. Cooley and Wads- 
 worth appealed." (The witness is in error, for the application 
 is set forth in "Exhibit A," of Helm's deposition, on page 237, 
 shows that Mr. Cooley alone, and not Cooley and Wadsworth, 
 applied for administration, and the appeal from the decision 
 of the Probate Court was by Cooley.) The witness then pro- 
 ceeds, and says : 
 
 " On the day of trial, Mr. Wadsworth desired him (witness) 
 to talk with Cooley, for the purpose of making a settlement, 
 and at his request I called on Cooley. Mr. Cooley wanted me 
 to purchase the assets (of C. N. H. & Co.) which I refused to 
 do. I then went to Rucker's office, and Mr. Wadsworth came 
 in and said to me that the matter must be settled, and if not 
 in any other way, he (Wadsworth) would purchase the interest 
 of Cooley, Wadsworth & Co., and that then he (Wadsworth) 
 would arbitrate the matter with the estate." I. 41, "The 
 reason Wadsworth assigned why the matter must be settled, 
 was, that unless it was settled, he (WadswortV) should have 
 to go out of one concern or the other, meaning the concerns 
 of Cooley, Wadsworth & Co., or C. N. Henderson & Co." 
 In answer to Inty's 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 
 pp. 310, 311, the witness testifies, " That the arbitration spoken 
 of by Wadsworth took place soon after the circumstances 
 above related. The arbitrators were chosen by Mr. Wads- 
 worth selecting one ; I selected one, and the third was selected 
 by the estate, or we agreed upon him." To the 48th I. " Who 
 represented Cooley & Wadsworth's interest?" he replies, 
 " Farwell." The arbitration was had. "A paper was present- 
 ed by Farwell, which Farwell showed me as the accounts of 
 Cooley, Wadsworth & Henderson. The award of arbitrators 
 is contained in " Exhibit D " to his deposition (on page 353). 
 
 On page 331, cross-int. 99, he testifies, "That he means by 
 his answer to the 48th direct, that Mr. Farwell, before the 
 arbitrators, represented the interest belonging to Wadsworth, 
 and in behalf of Wadsworth. The stock account of C. N. H. 
 & Co. on its books were opened in the names of C. N. Hender- 
 son, and Cooley, Wadsworth & Co., by D. Hobart Hills, the
 
 25 
 
 clerk for C. N. H. & Co." On page 342, cross-hit. 132, he 
 says, " I mean, in answer to the 77 direct int., that at that 
 time (of the meeting of the arbitrators) Mr. Farwell claimed 
 that Wadsworth had such a claim ; Mr. Wadsworth standing 
 in relation to the estate in the place of Cooley, Wadsworth & 
 Co., or as successor to the rights of Cooley & Wadsworth." 
 On page 343, cross-int. 135, " I believe in most instances, in 
 my answers, 1 have considered Cooley ', Wadsworth & Co., 
 and Cooley & Wadsworth, as synonymous terms." Cross-int. 
 136. " The book of accounts of the firm of C. N. H. & Co., 
 do not contain any account against Cooley & Wadsworth, and 
 I find no such firm as C. & W." Cross-int. 137. " The indi- 
 vidual stock accounts of the firm of C. N. II. & Co. are kept 
 in the name of C. N. Henderson, and that of Cooley, Wads- 
 worth & Co." Cross-int. 138. " I think all suits commenced 
 by the firm of C. N. H. & Co., were commenced in the name 
 of Henderson, Cooley, Wadsworth & Farwell, plaintiffs." 
 On page 836, Int. 72, he says, " That C. N. H. & Co. derived 
 their original business from the firm of Cooley, Wadsworth & 
 Co." Page 334, cross-int. 100. " Mr. Henderson (meaning 
 Charles N. Henderson) treated Farwell as partner in the firm 
 of C. N. H. & Co." In reply to cross. -int. 109, he testifies, 
 "That the firm of Cooley, Wadsworth & Co., that was in 
 partnership with Henderson, was composed of Cooley, Wads- 
 worth & Farwell." On pages 683 to 688 he testifies, " That 
 he caused, some time in 1855, two suits to be commenced by 
 C. N. Henderson & Co., against its debtors ; and that he made 
 affidavit, then in said cause, that the firm of C. N. H. & Co. 
 was composed of Cooley, Wadsworth, Farwell & Henderson ; 
 and that C. N. Henderson made and filed two similar affidavits 
 to the same effect." 
 
 D. Hobert Hills, on page 672, testifies, that "he was acqaint- 
 ed with the firm of C. N. H. & Co., from some time in the 
 summer of 1851 to 1855, and that the partners were Henderson 
 & C., W. & Co. I was salesman, and kept the books. Mr. 
 Henderson informed me who the partners were." 
 
 James S. Murray, on 629-30, testifies, " That he has ex- 
 amined the files of the Circuit Court, and find the firm of C. 
 N. H. & Co. have commenced thirteen suits in that Court, in 
 the name of Cooley, Wadsworth, Farwell & Henderson as 
 plaintiffs, and as members of that firm, and that four of said
 
 suits were commenced by Jono Woodbridge, Jr., as one of the 3 
 attorneys for plaintiffs." 
 
 Walter Kimball, on page 631-2-3 and 4, testifies, " that he 
 " was clerk of the Cook Co. Court of Com. Pleas, and the 
 " Superior Court of Chicago from April, 1849, to 1st December, 
 " 1861, and that he has examined the files of said Courts and 
 " finds that within that time the firm of C. N. H. & Co. com- 
 "menced 20 suits in said -courts, wherein they allege by 
 " declaration and in some 'cases by affidavit that the said firm 
 " was made up of Henderson, Cooley, Wadsworth and Far- 
 " well, and that many of the cases are commenced by Jno. 
 " Woodbridge, jr., as their attorney, and that the affidavit in 
 " the Culton' suit of C. M. Henderson was drawn by Wood- 
 " bridge." 
 
 Alpha Rockwell, on page 635-6 testifies, "that he was the 
 " bookkeeper of the firm of C. N. H. & Co., from and during 
 "the year 1854 and portions of the years of 1853 and 1855, 
 " and that the members of that firm were, Henderson, Cooley? 
 " Wadsworth and Farwell, and that he knows that Farwell 
 " was a member of it from the fact, that he was a member of 
 " the firm of C., W. & Co., and from the fact that he was 
 " advised with by Henderson." 
 
 Joseph S. Miles, an old clerk of C., W. & Co., from 1st 
 March, 1851, to 1857, on page 658-9, int'y 14-17, testifies, 
 " that he knew the firm of C. N. H. & Co., and believes that 
 " the partners to have been, Henderson, Cooley, Wadsworth 
 " and Farwell, and the grounds of his belief were, he was the 
 "clerk for C., W. & Co., and knew who composed that firm, 
 " and he had a general knowledge of their business in both 
 "houses (to-wit C., W. & Co. and C. N. 3. & Co.), and I 
 " have the same reason for believing that they were members 
 " of C. N. H. & Co., that I have that there was such a firm as 
 " C., W. & Co. Their intercourse was that of partners." 
 
 Charles G. Cooley, on page 515 and 516, int'y 7, testifies, 
 " that he received of Horace C. Gillette, the administrator, a 
 " paper of which the following is a true copy : 
 
 " CHICAGO, Nov. 8th, 1859. 
 
 " Received of Horace C. Gillette, Administrator of the 
 " Estate of C. N. Henderson, nine hundred and thirty-nine dol' 
 " lars and fifteen cents, which is in full of settlement and pur-
 
 27 
 
 . . 
 
 " chase of the assets of the firm of C. N. Henderson & Co. , 
 " which expired in 1855, being' in full of all demands what- 
 " soever. 
 
 COOLEY, WADSWORTH & Co." 
 
 Int'y 8., "I delivered the original to Mr. Woodbridge, attor- 
 
 " ney for Wadsworth. I did so because I did not deem the 
 
 " receipt sufficient. Mr. Wadsworth said that he would consult 
 
 " with his attorney about giving me another in place of it. 
 
 " Mr. Woodbridge called upon me for the paper. I explained to 
 
 " him my objection to the form of the receipt, and at his request 
 
 " I gave him the receipt, and he said he would procure a proper 
 
 " one from Wadsworth, and said he would prefer to give some 
 
 "other; this was in April, 1864, and prior to the 15th. I 
 
 " wanted a receipt, refering more particularly to the partner- 
 
 " ship giving the names composing it, when it commenced and 
 
 " terminated and how the settlement was and when it was 
 
 " made (int'y 12). I went with Wadsworth to Woodbridge's 
 
 " office, when he said he wished to consult with his attorney 
 
 " about changing the receipt. Wadsworth said at Wood- 
 
 " bridge's office, that he would comply with my request 
 
 " (change the receipt) but did not do it that day. I submitted 
 
 " a form of the receipt which I requested them to give. Mr. 
 
 " Wadsworth or Woodbridge objected to s6me features of my 
 
 " draft and suggested that it might be improved." In answer 
 
 to 13, he continues, " u that they made no material objection to 
 
 " changing the form of the receipt except as to the signature. 
 
 " I supposed the signature to the original receipt was correct. 
 
 " They said it was not and that it ought not to have been 
 
 " signed so (int'y 20) ; the draft of another receipt was drawn 
 
 " up by Woodbridge and it was afterwards presented to me 
 
 " in the handwriting of Wadsworth (irit'y 22). The original 
 
 " receipt was in the handwriting of Wadsworth and the last 
 
 " time I saw it, it was at Mr. Woodbrige's office (inty 24). I 
 
 " said when he handed me the substituted receipt, that I sup- 
 
 " pose that all of the firm of C., W. & Co. were interested, in 
 
 " the firm of C. N. H. & Co. He said they were not, but only 
 
 " himself and Cooley, aud that the estate would be fully pro- 
 
 " tected by a receipt from Cooley & Wadsworth. On this 
 
 " assurance I received.the receipt signed by Mr. Wadsworth, 
 
 " as assignee of the interest of Cpoley & Wadsworth, and he 
 
 " then said to me *hat he copied it from a Draft made by 
 
 " Woodbridge." Int'y 25, page 520 reads as follows :
 
 28 
 
 
 " Received this 8th day of November, 1859, of Horace C. 
 " Gillette, administrator of the estate of C. N. Henderson, 
 " deceased, nine hundred and thirty-nine ^ dollars, in full of 
 " award of Albert Kieth, Wm. E. Doggett, and James Mc- 
 " Kindley, arbitrators appointed to adjust the accounts of the 
 " late firm C. N. Henderson & Co., to find the amount due 
 " Cooley & Wadsworth from the estate of C. N. Henderson 
 " upon settlement of the affairs of said firm. I accept the 
 " aforesaid amount in full of all claims upon said estate on 
 " account of said firm. The said firm of C. N. Henderson & 
 " Co., consisting of C. N. Henderson, Francis B. Cooley, and 
 " Elisha S. Wadsworth, which commenced, A. D., 1851, and 
 " expired in 1855." 
 
 " E. S. WADSWORTH, ASSIGNEE 
 " of the interest of Cooley & Wadsworth." 
 
 On page 521, int'y 31, he says, " John V. Farwell caUed on 
 me from the 10th to 15th of April, 1864, while depositions were 
 being taken in this case in Henderson's store for the said ori- 
 ginal receipt or a copy of it, I then did not have it. He called 
 the day after, and in the time I had procured the substituted 
 receipt. Int'y 32. When Farwell first called, I suppose 
 Woodbridge had the original receipt. I gave Farwell a copy 
 of the substituted receipt." 
 
 Horace C. Gillette, administrator, etc., on page 525, int'y 15, 
 testifies, " I paid Elisha S. Wadsworth a claim he presented 
 and filed in the Probate Court, as the amount due on the 
 award of the arbitrators, appointed, as I understood, to decide 
 what was due from C. N. Henderson & Co., to Elisha S. 
 Wadsworth. I paid the same to him by order of Court." 
 
 Page 525, Int. 16, "I paid $939.15 in November, 1859." 
 
 Page 526, he says, ". I looked at the papers (filed in Probate 
 Court) and found a bill presented by Elisha S. Wadsworth, or 
 the firm of Cooley, Wadsworth & Co., sworn to by Mr. Wads- 
 worth. (This was the claim he paid.) This was done within 
 the last month, (March, 1864.) 
 
 Int. 22, he says, "I have examined the records of said court 
 and find, and herewith append true copies of the same, as 
 follows :
 
 29 
 
 ' Estate of C. N. Henderson. 
 
 '1859. To Cooley, Wadsworth & Co., 
 
 ' March 31. To $903.03. 
 
 ' The above $903.03 is the balance as appears from papers per 
 ' arbitration. BUKKE. 
 
 ' Received of Horace C. Gillette the sum of nine hundred 
 ' thirty-nine dollars and fifteen cents, in full of judgment vs. the 
 ' estate of C. N. Henderson. 
 
 'Nov. 8, 1859. E. S. WADSWORTH.'" 
 
 On page 527, Int. 23-24, he says : " I received of Wads- 
 worth, as administrator, a receipt for the said sum of $939.15, 
 and gave it to Charles G. Cooley ; I gave it to him in April 
 last, (1864.)" Int. 26, " This receipt was exchanged by Mr. 
 C. G. Cooley ; at the time of change of the receipt I might 
 have seen the original." Page 928, Int. 28, " I was present 
 when Wadsworth and Cooley went to make the change ; when 
 Wadsworth gave me the original receipt, he took the pen and 
 hesitated, and said he did not know how to sign it, but if in- 
 correct he would correct it for me." Int. 29, " About two 
 weeks after I gave the receipt to C. G. Cooley, I, with Cooley, 
 went to Wadsworth, and he refused to alter it (the original 
 receipt,) until he consulted with Woodbridge, (notice this fact ;) 
 afterwards he brought us the receipt (substituted receipt.)" 
 Page 529, Int. 34, " The substituted receipt was agreed upon 
 at the time of this conversation with Woodbridge." 
 
 As to the proof of the truth or falsity of the other part of 
 the allegation above referred to, to wit : " And that mainly 
 owing to Wadsworth's credit and influence, the said firms of 
 C. W. & Co., and C. N. H. & Co., transacted a large and profit- 
 able business, and that C. W. & Co. thereby were enabled to 
 commence with and maintain the position of the largest whole- 
 sale house in Chicago, and Cooley, Farwell & Co. were enabled 
 to amass a considerable fortune." See ante-pages 11 to 15 
 inclusive for the evidence. 
 
 Which is sustained by the evidence, the said allegation in 
 complainant's bill, or the answer thereto by the defendants ? 
 
 First To sustain his said allegation, that Farwell is not a 
 partner in the firm of C. N. H. & Co., he introduced the said 
 "exhibit A" to Henderson's deposition on page 351, with 
 FarwelFs name omitted as aforesaid. Why did he not intro-
 
 30 
 
 duce the original agreement of dissolution, signed by all the 
 partners? He knew of its existence, and he knew thatFarwell 
 was a partner. The orginal agreement contained the signa- 
 tures of the said four partners, and this would defeat his scheme 
 of defrauding Farwell in the matter of the profits of this firm. 
 It was an evil hour when Wadsworth seized upon this " ex- 
 hibit A " to Henderson's deposition, as a means to take from 
 Mr. Farwell his profits in said firm. 
 
 Without reference to said " exhibit No. 2," to Mr. Aikeh's 
 deposition, on page 1 of appendix to printed evidence, the said 
 " exhibit A," shows upon its face that the contracting parties 
 named therein were C. N. Henderson, of the one part, and the 
 .said firm of Cooley, Wadsworth & Co., of the other part. The 
 bare omission of Farwell's signature to the said agreement, or 
 to said ' exhibit,' does not vitiate the agreement or change the 
 real parties to it. If it was entered upon and faithfully car- 
 ried out by all the said contracting parties, that of itself con- 
 firms the agreement, though it was in fact signed by only a 
 part of the parties to it. But the original agreement, attached 
 to the deposition of Mr. Aiken's dapiiuldiun, on pages one and 
 two of appendix, which contains the signatures of Henderson, 
 Cooley, Wadsworth & Farwell, settles this controversy and 
 fully explains the omission of Farwell's name to said "Exhibit 
 A," to be an oversight, as we have before said. And, besides, 
 it will be remembered that Mr. Wadsworth avers in his bill 
 that Mr. Farwell was one of the partners in the said firms of 
 Cooley, Wadsworth & Co. If F,arwell was a partner in the 
 said firms of Cooley, Wadsworth & Co., and the said agree- 
 ment of dissolution of the firm of C. N. H. & Co., was made, 
 in fact, between Henderson of one part, and the said first firm 
 of Cooley, Wadsworth & Co., though Farwell's name was 
 omitted therefrom, doe,s not change the said agreement nor the 
 real parties thereto. The fact that the said " Exhibit A" con- 
 tains a scrawl for the signature of the fourth person (see orig- 
 inal exhibit, for it is omitted in the printed copy) taken in con- 
 nection with the fact that the said firm of C. W. & Co. was 
 one of the contracting parties, amounts to certain proof that 
 Farwell was a partner in the firm of C. N. H. & Co., and as a 
 member of the said firm of C. W. & Co., Avas one of the con- 
 tracting parties to said agreement.
 
 31 
 
 There is no evidence, (it will be remembered) that the part- 
 ners of the said firm, one and all, made, or adopted the said 
 " Exhibit A," or that it was ever treated by either of said part- 
 ners in settling the affairs of that firm as the original agree- 
 ment of dissolution, except on the ground of the admitted fact 
 that Far well was one of the partners. To say that this " Ex- 
 hibit A," is to determine the question before this Court, as to 
 who were and who were not the partners in the firm of C. N". 
 II. & Co., and that the persons signing it were the partners 
 alone, would be to ignore all the acts of each and all of the 
 several partners, as well as the business transactions of the firm 
 itself, and that of the firm of C. W. & Co., and to contradict 
 the said sworn affidavits of Charles N. Henderson, Charles M. 
 Henderson and John V. Farwell, while in the act or duty of 
 commencing attachment suits in behalf of said firm against its 
 debtors during the business progress of the said firm. 
 
 Second. To further sustain his allegation, Mr. Wadsworth 
 introduces the original Articles of Copartnership, forming the 
 said firm of C. N. Henderson & Co., bearing date the 15th of 
 August, 1851, signed by Henderson, Cooley and "Wadsworth, 
 providing for and constituting said copartnership. It is found 
 on page 696-7. 
 
 We do not deny but that this agreement was made, and by 
 the persons therein named. But we do say that that copart- 
 nership never went into effect ; and that almost immediately 
 after said paper was signed, Mr. Farwell was admitted into 
 said firm. Said writing provided that Cooley and Wadsworth 
 should furnish $5,000 towards its capital, and that they should 
 discontinue the boot and shoe trade, then carried on by the 
 firm of Cooley, Wadsworth & Co. As Mr. Farwell was a 
 member of the latter firm at that time, they could not discon- 
 tinue this business without Mr. Farwell's consent ; and there- 
 upon, it was mutually agreed by and between Charles N. 
 Henderson, Francis B. Cooley, Elisha S. Wadsworth, and John 
 V. Farwell, that the firm of Cooley, Wadsworth & Co. should 
 take the place of Cooley & Wadsworth, in the firm of C. N". 
 II. & Co., and furnish their share of its capital, and receive 
 then- share of its profits, and sustain their share of the losses. 
 This made Mr. Farwell a partner in the firm of C. N. H. & Co. 
 from the commencement of its business ; and all the acts of 
 the several partners, whether" legal or otherwise, from that
 
 32 
 
 time up to the filing of Wadswortli's bill of complaint, recog- 
 nized Fanvell as one of the partners. The action of men and 
 firms speak louder than mer parchment agreements. Parch- 
 ment agreements, and especially partnership agreements, are 
 almost invariably changed in one or many particulars, and the 
 results of such changes and business performed by the partners 
 under such changes, are entered upon the books of the firm, and 
 the books contain the only evidence of such change or changes. 
 Is it to be supposed for a moment that Charles N. Henderson, 
 Charles M. Henderson, and John V. Farwell, soon after the 
 organization of said firm, and during its business career, would, 
 one and ah 1 , go before the court with their several solemn 
 affidavits, declaring that Farwell was a partner in that firm, if 
 he was not? The facts and acts of the partners detailed in 
 the evidence, makes it clear and certain that Farwell was a 
 partner in that firm. 
 
 Third. To further sustain said allegation, complainant in- 
 troduces the petition of Francis B. Cooley, filed in the Probate 
 Court, in 1859, for letters of administration upon the estate of 
 C. N. Henderson, in which he purports to set forth the members 
 of the firm, and omits the name of Farwell. For copy of 
 petition see " Exhibit A" to Helm's deposition, page 237 (and 
 also see the original, for the name of Farwell stricken out does 
 not appear in printed copy). 
 
 Our reply to this is 1st. It does not bind Mr. Farwell, for 
 he is not a party to the proceeding. 2d. The name of Farwell 
 is written in one place in the instrument, and then erased, and 
 a blank space for his name is left in another part of the peti- 
 tion. 3d. The omission of Farwell's name is evidently a cleri- 
 cal error, and the erasure of his name may have been the work 
 of an impostor. 4th. Both Mr. Cooley and Farwell allege in 
 their answer that Farwell was a partner in that firm, and such 
 allegation is against the personal pecuniary interest of Cooley. 
 5th. The whole evidence considered together prove that Far- 
 well was a partner in that firm. 6th. The said petition of 
 Cooley does not undertake to say who were and who were not 
 partners ; but only that the estate was indebted to Cooley & 
 Wads worth in over the sum of $20,000, and then adds that 
 they were partners with C. N. Henderson. This petition of 
 Cooley's might conclude him upon the question as between 
 himself and Farwell and Wadsworth, if it was not shown to
 
 33 
 
 bo a mifit: ">ut it cannot effect the interests and rights of 
 
 Farwell, because lie was not made a party to that transaction. 
 As between Cooley & Wadsworth, it has been clearly shown 
 that the name of Farwell was erroneously omitted from the 
 petition. Mr. Wadsworth, as clearly and as surely concludes 
 himself from denying thr.t Farwell was a partner in the said 
 tirm of C. N. H. & Co., by the receipts which he gave, recog- 
 nizing Farwell to be a partner, and by the entries in the books 
 of the said firms of C., W. & Co. and C. N. Henderson & Co., 
 at the time these firms were formed, and by every subsequent 
 entry made therein, and by the agreement dissolving the said 
 firm of C. 1ST. H. & Co., which Wadsworth executed, and by 
 wiiicn it appears that C., W. & Co. was the partner of C. $". 
 Henderson, and which agreement was signed by Farwell, in 
 connection with his partners. 
 
 Fourth. To further sustain and prove said allegaticfn, com- 
 plainant introduces " Exhibit D," attached to the deposition 
 of C. M. Henderson, a copy of which is on page 355, purporting 
 to l)e an award, made by arbitrators, by virtue of matters of 
 difference between Cooley & Wadsworth and Charles M. Hen- 
 derson ; and he desires this court, from this award, under the 
 proof, to conclude that this arbitration was in fact between 
 the estate of C. N. Henderson and Cooley & Wadsworth, and 
 that, therefore, Farwell was not a partner in the firm of C. N. 
 H. & Co. 
 
 Our reply to this is 1st. That under the proof, this matter 
 of arbitration was between the estate of C. N. H., deceased, 
 and complainant. If this is so, then, 2d. Neither Cooley nor 
 Farwell were parties to it ; and if not, then they are not bound 
 by its proceedings, nor are they responsible in any sense for 
 its errors. 3d. It would be unreasonable to aUow the act of 
 one partner, when acting in his own individual name and be- 
 half, to bind his copartners to a fictitious statement of facts 
 touching matters personal to their joint interests as partners. 
 If such is the law, or if such a rule of evidence as to who are 
 and who are not partners in a firm is to obtain, a person of cun- 
 ning device, with a fraudulent intent, could prove himself the 
 partner of any firm he may desire to ; and although he was 
 not a partner, and did not have a cent's interest in the firm, 
 yet he could come in as one of the largest sharers in the profits 
 of the firm's business, l>y a like proceeding.
 
 34 
 
 4th. 'Neither of the positions of the complainants, under 
 the evidence, which seem to tend towards making Henderson, 
 Cooley and Wadsworth the sole partners in the firm of P. N. 
 H. & Co., have the authority of the several partners. All and 
 each of these positions stand upon some isolated transaction of 
 one, or at most, two of the partners, to wit: Cooley and Wads- 
 worth in their individual capacity, Avithout the concurrence of- 
 either Henderson or, Far.well, or that of themselves. Mr. Gili 
 lette, the administrator of the estate, expressly testifies on page 
 526, Int. 20 and 21, "that the membership of the firm of C. 
 N. H., & Co., during his and his predecessor's administration, 
 was not taken into consideration." He says, " I knew nothing 
 of the firm until I saw the gaper in Court, a bill sworn to by 
 E. S. Wadsworth." (For paper, see page 527, Int. 22.) 
 
 5th. The fact that the report of the arbitrators (on page 355) 
 is wholly at variance as to what was submitted to them, and 
 as to who were the parties to said submission, with the evi- 
 dence as to such facts, pretty conclusively shows that said 
 award is not to be taken as deciding who were and who were 
 not partners of said firm ; and besides, this question was not 
 before said arbitrators. 
 
 Let us look into this award. The arbitrators "find (seepage 
 356) C. N. Henderson indebted to Cooley and Wadsworth in 
 the sum of $971.50, as the matter of diiference bet ween Cooky 
 and Wadsworth and Charles M. Henderson." By comparing 
 this award with the evidence of C. M. Henderson, we shall 
 find some singular developments. 
 
 - On page 355, cross-int. 133, C. M. Henderson testifies, "that 
 he deems the award correct, and it finds C. N. Henderson in- 
 debted to Cooley & Wadsworth in the sum of &903.03." On 
 page 334, cross-int. 106-7, he testifies, " that Henderson, at the, 
 time of his death, was indebted to Cooley, Wadsworth & Co., 
 independent of interest, in the sum of 15,147.50, and the amount 
 due said firm, with interest, Avould be 47,470.50." 
 
 On page 343, cross-int. 135, Henderson testifies, "That Far- 
 well, before the arbitrators claimed for Wadsworth, that after 
 selling the estates' interest in the assets for $13,000 to Wads- 
 worth, said estate still owed Wadsworth, as the successor to 
 the interest of CL, W. & Co., the sum of $4,681.00." 
 
 The iMiLitiuUfuuTMj their award, show that they took into 
 consideration all matters of difference between the parties, and
 
 35 
 
 they find C. X. H. is indebted to C. <fc W. ill the sum of 
 $971.50. 
 
 Mr. Henderson, on page 329, cross 84, testifies, " that it was 
 agreed that Mr. Wadsworth was to take the assets (that is, 
 the interest of the said estate in them) at the price of $13,000." 
 (See cross 88.) Mr. Wadsworth and this witness made 'the 
 bargain. (See cross 89, page 330.) " It was made at the time 
 the arbitration was agreed upon;" (cross 85.) "This agree- 
 ment determined what price Wadsworth was to give said es- 
 tate for its interest in said assets, and the other questions 
 (questions of interest upon over drafts of C. N. H.) were left 
 to arbitration," cross 86, page 329, " but Wadsworth bought the 
 interest of the estate in the firni's assets, and paid the sum of 
 $13, 000 for them." By this transaction or arbitration, Wads- 
 worth, under the testimony of C. M. Henderson, gives to the 
 said estate the sum of 87,470.50, and gets in its place the sum 
 of $971.50. 
 
 On page 342, cross 130, 131, Henderson testifiei, "That the 
 agreement of Wadsworth with the estate for the purchase of 
 its interest for $13,000 -was made by Wadsworth with him, 
 and that he acted for the estate." The award then did not 
 settle the copartnership account with Henderson, nor the inter- 
 est of the said estate in the copartnership assets, for this, the 
 witness sold to Wadsworth for $13,000. The arbitrators set- 
 tled then in fact, the private account of C. N. Henderson with 
 the firm, and nothing more, and this is all that was intended. 
 
 Fifth. To further sustain his said allegation, complainant 
 introduces " Exhibit C " to Mr. Henderson's deposition, on 
 page 353, purporting to be a statement of the matters between 
 C. N. Henderson and Cooley, Wadsworth & Co., alias Cooley 
 & Wadsworth, (the paper shows that these names are used in 
 the instrument as synonymous terms,) presented to the arbitra- 
 tors by Wadsworth, through Mr. Farwell. (See page 343, cross 
 135.) This complainant regards as one of the indissoluble 
 links in the evidence to prove that Farwell was not a partner 
 in the firm of C. N. H. & Co. 
 
 Our specific reply to this is: 1st. The name of Cooley 
 Wadsworth & Co., and the name of Cooley & Wadsworth, 
 are used in this paper in the same sense and connection, and 
 that they mean Cooley, Wadsworth & Co. in every case.
 
 36 
 
 2d. This exhibit is not in Farw ell's hand- writing. (See page 
 
 342, cross 129.) ' *> 
 3d. The names C., W. & Co., and C. & W., are used by C. 
 
 M. Henderson in his testimony as synonymous terms, (see page 
 
 343, cross 135,) and the whole testimony supports the conclu- 
 sion that the name of Cooley & "Wadsworth were used when 
 the persons so using them meant Cooley, Wadsworth & Co. 
 To believe that C. & W., and not C., W. & Co., were the real 
 and only partners in the firm of C. N. H. & Co., we must cast 
 aside the real facts in the case as shown by the evidence. But 
 we have presented complainant's evidence to support his claims, 
 and now let us look into the evidence on the other side. 
 
 We have already collated and read to the Court the evidence 
 to support our answer to the complainant's said allegation, and 
 \ve will now briefly recall the Court's attention to some special 
 points this evidence sustains. 
 
 First. We say that the books of the firm were opened by 
 Charles N. Henderson, the active partner in the firm of C. N. 
 H. & Co., in the names of himself and Cooley, Wadsworth & 
 Co., as the partners, and that Cooley, Wadsworth & Co. paid 
 the share of the capital into the firm ; and the books show that 
 Cooley, Wadsworth & Co. were the only partners with -C. N. 
 Henderson. (See Spink's testimony, page 144-5, cross 129. 
 
 Second. The books of both firms show that the profits were 
 enjoyed and divided between C. N. Henderson and Cooley, 
 Wadsworth & Co., in the beginning of each year, and the 
 credit balances were struck on said books at its close, between 
 Henderson of one part, and C., W. & Co., of the other. 
 
 Third. On the 30th March, 1859, complainant bought out 
 the interest of Cooley, Wadsworth & Co., in the assets of the 
 firm of C. N. H. & Co., and treated the firm of C., W. & Co., 
 as a member of the firm of C. N. H. & Co. 
 
 4th. Both papers presented in evidence, as the original 
 agreement of dissolution, recognize the firm of Cooley, Wads- 
 worth <fc Co. as the partners of C. N. H. It matters not who 
 wrote the agreement; what was written was subscribed by 
 Wadsworth, and Henderson, and Cooley, and Farwell. 
 
 J5th. The individual acts of Wadsworth, when dealing with 
 the assets of the firm, conclude him from denying that Farwell 
 was a partner therein. See ,his order to Simeon Farwell, to 
 release the Kidd mortgage, on page 147, int'y 13, bearing date
 
 87 
 
 January 29, 1863, and his receipts given to Mr. Gillette, on 
 page 515 of printed evidence, to which receipt he signs the 
 tirm name of " Cooley, Wadsworth & Co.," when acting in the 
 capacity of assignee of the interest of that firm in the assets of 
 " C. N. H. & Co." Then again, look his act in effecting an ex- 
 change of this receipt, at a time when we were taking the 
 depositions of Mr. Burke, for the one on page 520, int'y 25. 
 Here we find a bold attempt on his part to manufacture testi- 
 mony to suit his allegation. 
 
 5th. The commencement of all suits by the firm, under the 
 special direction and oath of C. N. Henderson, the active 
 partner in the name of Henderson, Cooley, "Wadsworth & 
 Farwell, as constituting the partners in the firm of C.-N". H. & 
 Co., leaves not a doubt upon a candid and unprejudiced mind 
 as to Farwell's being a partner therein. 
 
 6. TJie fact that Wadsworth had free access to the books 
 of account of the firms of Cooley, Wadsworth & Co., and C. 
 N. Henderson & Co., when they by every entry therein which 
 had any reference to the business, the stock account, the divi- 
 sion of profits and losses in the firm of C. N. Henderson & Co., 
 all of which showing, that the firm of Cooley, Wadsworth & 
 Co. and C. N. H. were the partners in the firm of C. N. H. & 
 Co. and the fact that up to February, 1862, his (Wads- 
 worth's) office was in the office were the books of the firm of 
 C., W. & Co. were kept, and that Rafter the 30th of March, 
 1859, he had the exclusive custody and control of the books of 
 C. N. Henderson & Co., would certainly seem to prove con- 
 clusively, that Wadsworth acted intelligently, when he, by his 
 doings and his receipts, recognized Farwell as a parter in the 
 firm of C. N. H. & Co. 
 
 7. The cutting out of the leaf of the journal on which the 
 original entry of $13,000 was made to the account of C., W. & 
 Co., on the books of C. N. H. & Co., after Wadsworth took 
 the exclusive possession of them (see Burk, on pages 289, 290, 
 206, 207, 208, 209, 210, 211, 212, 213, 215, 217, 218, 220) is a 
 strong circumstance against him, which he does not explain. 
 
 8. Farwell was treated as a partner of that firm. C. N. 
 Henderson, before his death, held interviews with him about 
 the assets. (See Henderson's testimony, page 306, int'y 22.) 
 On page 334 and 110, Henderson testifies, that C. N. Hender- 
 son treated Farwell as a partner in the firm, and that he was so
 
 38 
 
 treated in all suits commenced in the interest of the firm. 
 The files of the Courts show that nil suits were so commenced. 
 See pages 629-30-31-32-34. 
 
 9. The t /i!>s and oldest clerks of both firms believed and 
 were informed by Henderson that Farwcll was a partner in the 
 firm of C. N. H. & Co. Sec Hill's ev., page 672, and Miles' ev. 
 on page 658-9. Both say " Farwell was treated like a partner, 
 and they believed he was a partner that their intercourse was 
 that of partners." Rockwell testifies, " that he was a partner." 
 See page 635-6. 
 
 10. There is no account on either the books of C. N. H. & 
 Co., opened in the name of Cooley & Wads worth no private 
 or stock account. But on the books of both firms, the private 
 and stock accounts are in the name of C. N. Henderson and 
 Cooley, Wadsworth & Co., as constituting the firm of C. N. 
 H. & Co. 
 
 11. The said firm of C. N. H. & Co. derived its business 
 from the firm of Cooley, Wadsworth & Co., and Cooley, 
 Wadsworth & Co. released its boot and shoe trade to that 
 firm (see page 536, inty 72). This of itself, when taken with 
 the* fact that Farwell is admitted to have been a partnef in the 
 said firm of Cooley, Wadsworth & Co., proves, that he was a 
 partner. 
 
 12. During the transaction of the business of the firm of C. 
 N. PL & Co., and at the time of its dissolution in 1855, and at 
 the time Wadsworth bought the interest of Cooley, Wads- 
 worth & Co., and all through these negotiations, Farwell is 
 treated as a partner dealt witn as a partner, and in all things 
 and in all business consultations, negotiations, and contracts, 
 lie was recognized to have been one of the partners in the firm 
 of C. K PL & Co. 
 
 Take all these circumstances and facts presented in the evi- 
 dence, and this Court cannot come to any other conclusion 
 than that the idea of Wadsworth in attempting to make out 
 that Farwell was not a partner in this firm, was an after-thought, 
 and that it was probably put into his head by one of his solici- 
 tors in this suit. The complicity proven in the substitution of 
 a certain fixed up receipt in the place of the straight-forward 
 receipt given by Wadsworth to Mr. Gillette, and the marvel- 
 ous disappearance of leaf, paged 167 of the journal, on which 
 the original entry of the said f 1 3,000, was made, strongly indi-
 
 39 
 
 cate that this was an after-thought. Had not the posting 
 of this item referred to the journal or original entry, we might 
 have believed Mr. Burk, when he swore that the ledger con- 
 tained the original entry. The manifest confusion of this wit- 
 ness, and his strange avoidance of questions upon this subject, 
 and his pretended forgetfulness of facts pertaining to the ori- 
 ginal entry, and its strange disappearance, seem to indicate 
 
 that he might have had^aoniething to do with this matter as a 
 
 f 7/unJt^ 
 favor to "VVadsworthJ^is so reckless and disregardful of the 
 
 truth in making his cnarges in his bill, is a significant warning, 
 or admonition, not to rely upon his allegations as true. 
 
 FOURTH ALLEGATION. 
 
 On page 8, of complainant's bill, he alleges, " that himself 
 " and Cooley and Farwell remained partners until the 1st day 
 " of February, 1862 ; and that at the expiration of their first 
 " agreement they entered into a new one, of date February 1st, 
 " 1854, commencing on the 1st day of March, 1854, and ending 
 " on the 1st day of March, 1857, with a capital as follows : 
 " Cooley to pay in $50,000, Wadsworth $40,000, and Farwell 
 " $10,000, profits and losses to be borne \ to Cooley and to 
 " Wadsworth and Farwell each. Cooley and Farwell to give 
 " their time to its business, and complainant's time was released 
 " to him (page 9). Farwell to have charge of the books, and 
 " was to see that an accurate account was kept of all expenses, 
 " losses and profits, and at the end of the year to render to his 
 " partners a statement of the same. [For all information of 
 " the business and the relative condition of the partner's 
 " accounts, Wadsworth specially provided, that he was to look 
 " to the books for the standing of the firm's transactions and 
 " for the private accounts of the partners]. And then, on 
 " pages 9 and 10, he further alleges, that this firm was but a 
 " continuation of the previous firm of Cooley, Wadsworth & 
 " Co., with such changes as are noted (see these articles on 
 " page 197 and 199 of ev.) ; and that on the 4th of December, 
 " 1856 (see page 11 of bill), the same persons, by articles of 
 " agreement of that date agreed to continue the same, (that is, 
 " the said second firm of C., W. & Co.) under the name of 
 " Cooley, Farwell & Co., for 5 years, to terminate on the 1st 
 u of February, 1862. Cooley to pay in as capital stock $100,- 
 " 000, in money and his services; Farwell $20,000 in money
 
 40 
 
 " and his services ; and Wadsworth $80,000, in money only. 
 " Cooley to share 4- of the profits and losses, and Farwell and 
 " Wadsworth were to share each ^ the profits and losses (see 
 " agreement, page 201 of evidence, and on page 11 of bill) ; 
 " each partner to be allowed to draw for private use during the 
 "term, 84,000 from the profits. He then sets forth, that, 
 " although nominally a new firm was constituted, yet, really, it 
 " provided for a continuation of the old firm of Cooley, Wads- 
 " worth & Co., that no new capital was subscribed, or intended 
 " to be, and that each party had the same proportion of capital 
 " in the new firm as in the old the same relative duties, and 
 " the same proportion of profits and losses, and that the nominal 
 " increase of capital provided for by said agreement was con- 
 " ditioned upon the amount realized out of the assets of the 
 " said firm of Cooley, Wadsworth & Co., and if not realized, 
 " no obligation ^vas imposed upon either to supply the defici- 
 " ency in his nominal subscription from his private funds 
 " it was supposed by all the partners at the time, that the 
 " assets of the firm of Cooley, Wadsworth & Co. would realize 
 " at least $200,000, and that this provision was inserted for the 
 " purpose of retaining $200,000, if it Avas so realized in the busi- 
 " ness of the firm of C., F. & Co." (see bill, page 12). And 
 then, he charges, that " he would (under this agreement, see 
 " page of bill 13) of necessity have had the same proportion 
 " of capital, relatively, to his partners in the firm of Cooley, 
 " Farwell & Co., which he had in the firm of Cooley, Wads- 
 " Avorth & Co., and he confided in FarAvell to make the proper 
 "transfers; and that he had no personal knoAvledge of the 
 " manner in which FarAvell made the transfers from the books 
 " of the old to those of the neAV firm." 
 
 By these allegations, complainant seeks to convince this 
 Court 1st, that the said three firms of Cooley, WadsAvorth & 
 Co., No. 1 and 2, and Cooley, Farwell & Co., Avere in fact 
 only a continuance of the first firm of C., W. & Co. 2d, That 
 there Avas no obligation upon either partner to make up his 
 capital in that firm to the amount named, unless that amount 
 Avas in fact realized from the assets of Cooley, Wadsworth & 
 Co. 3d. That under the said agreement, the complainant 
 Avould of necessity have had the same proportion of the capital 
 relatively to his partners in the firm of C., F. & Co., that he 
 had in the firm of C., W. & Co. 4. That he never looked into
 
 the books to see the transfers. 5. He confided in Farwell to 
 make them ; did not know that his transfers were wrong until 
 about the 1st of March, 1863. 
 
 In our answer we reply, 1st, that the defendants admit the 
 formation of the copartnership tinder the said firm names, bnt 
 they deny that the second .'and third firms were a continuation 
 of the terms of the agreement of the first or second firm of C., 
 W. & Co. 2d. They insist that the partners expected at that, 
 tune the assets were ample to make up the full amount of stock 
 to $200,000, and they insist that the duty was imperative upon 
 each to furnish his private share and that their increasing- 
 business demanded this amount of capital. 3d. They deny 
 that under said agreement, the said complainant would have 
 had the same proportion of capital relatively to his partners in 
 the firm of C., F. & Co., that he had in C., W. & Co. 4th. 
 They insist that complainant had access to the books, and 
 that if he did not know what was in them, or of the said trans- 
 fer, it was his own neglect and fault. 5. They deny that he 
 confided in Farwell ; but in all matters he referred to the books 
 of account, or might have done so, and that he acted upon his 
 own judgment. 
 
 These allegations and denials of the complainant and defend- 
 ants, really embrace some of the fundamental differences 
 between them. Too much care, then, cannot be observed in 
 examining the three copartnership agreements, on pages of 
 printed evidence 197, 198, 199, 200 and 201-2. By all and 
 every of these agreements it will be noticed, that time as well 
 as money was taken into the account at the time of the organ- 
 i/ation of said several firms in making up their capital stock. 
 
 And I desire to call particular attention to the fact ', that the 
 share of each partner in the profits and losses of each firm 
 determines the value the said several firms placed upon the 
 cash and time capital the. several partners were to devote to 
 the business of the said several respective firms. 
 
 It will be seen by reference to the articles of Agreement (on 
 page 197) that the first firm of Cooley, Wadsworth & Co. 
 was a continuation of the firm of Cooley, Wadsworth, Phelps 
 & Co. In this firm Farwell was to share | the profits and 
 losses, and the others to share in proportion to their cash 
 capital.
 
 42 
 
 The cash capital in the firm of Cooley, Wadsworth, Phelps 
 & Co. was $30,000, as follows : 
 Cooley's cash and time capital, $16,000 
 
 Wadsworth's cash and time capital, 5,000 
 
 Phelps' cash and a portion of time, - 8,000 
 
 Farwell's cash capital, - $1,000 
 
 " time " 2,750 
 
 $32,750 
 
 The sum of $3,750 being the one-eighth amount of the whole 
 of the capital contributed to this firm, it fixes the actual amount 
 of capital, that is, of cash and time which Farwell was re- 
 cognized to have devoted to the business of the firm. 
 
 On the 15th of May, 1851, Phelps, with the consent of his 
 partners, sold out his interest in said firm to Mr. Wadsworth, 
 and then Wadsworth added to his stock the sum of $3,000, 
 and they then changed the name of the firm to that of C., W. 
 & Co. In this new arrangement Farwell was to have, as be- 
 fore, one-eighth of the profits and losses, and the balance of 
 profits and losses were to be divided equally between Cooley 
 and Wadsworth. In this first firm of C., W. & Co., the part- 
 ners' capital therein was increased as follows : 
 Cooley's cash and time capital, - $16,000 
 
 Wadsworth's cash and time capital, - - 16,000 
 Farwell's cash capital, $1,000 
 
 " time " - 2,875 3,875 
 
 $35,875 
 
 Thus recognizing a business capital of this amount, and that 
 Farwell's cash and time share of it to be $3,875. The sum of 
 $3,875 being ^ of the Avhole capital of the firm, and Farwell's 
 interest in the profit and loss account being ^, it determined the 
 value of his time capital as fixed by the agreement forming 
 this new firm. 
 
 Before proceeding with the 2d firm of C., W. & Co., allow 
 me to illustrate my idea of time or service capijtal in its rela- 
 tion to cash capital, when one is put in against the other : 
 
 If two men enter into copartnership in wholesale dry goods. 
 One, Mr. A, puts in $100,000 cash, but no time capital, and he 
 is to share one-half of the profits and losses. The other, Mr. 
 B, puts in only his time against his partner's $100,000 cash, 
 and is to share one-half of the profits and losses. Is it not 
 plain from this illustration, that these two partners in their co-
 
 43 
 
 partnership agreement, fixed the value of the time capital to 
 be equal to that of the $100,000 cash capital of the other. 
 
 Take another illustration : Suppose the same men, at the expi- 
 ration of the last named firm, form a new copartnership upon 
 the following basis : Mr. A, puts in as capital $100,000, and de- 
 votes his whole time to its business, and is to share half of its 
 profits and losses. Mr. B, is to devote only his time to its busi- 
 ness, but no cash capital, and he is to share half of its profits 
 and losses. By this agreement it is seen that Mr. B.'s time is 
 taken to be equal in value to Mr. A.'s cash and time capital of 
 $100,000. 
 
 Now, suppose, that the said first firm in this illustration 
 cleared the sum of $100,000, and all the assets were in fact 
 carried into a second firm, and the second firm cleared $100,- 
 000, and then, these two men proposed to form a new or third 
 firm, and they agreed to pay into this firm the sum of $400,- 
 000 capital, each, as follows : Mr. A, the sum of $300,000 and 
 no time, and he is to share one-half the profits and losses, and 
 Mr. B, is to put in $100,000 and his time as capital, and he is 
 to share the other one-half of profits and losses. 
 It will be seen that Mr. A, in the first firm, had cash 
 
 capital, $100,000 
 
 And his profits were 50,000 
 
 Making, $150,000 
 
 Mr. B, had no cash capital, but his profits are $50,000. 
 Mr. A. takes $100,000 from his $150,000, and invests it in 
 
 the 2d firm, and puts the $50,000 in his pocket. Mr. B, puts 
 
 his profits of $50,000 hi his pocket. 
 
 In the 2d firm, Mr. A puts in capital, - $100,000 
 
 And his profits are - 50,000 
 
 Making, - $150,000 
 
 Mr. B, had no cash capital, but rendered his services, 
 
 But his profits are $50,000 
 
 The 3d firm, Mr. A, is to pay hi capital, $300,000 
 
 He brings forward his capital and profits from the 2d 
 firm, which amount to - $150,000 
 
 His profits in the 1st firm, 50,000 
 
 $200,000
 
 ' 44 
 
 Mr. A, is short $100,000 from the amount, and Mr. 13, has 
 profits from his service capital alone to fully pay up his 
 $100,000. 
 
 It will be perceived that these partners do not sustain the 
 same relative position in each of these three firms ; but that 
 their positions are as distinct in each firm as though eacli firm 
 was made up of new men. 
 
 The 2d firm of C., W. & Co., was organized on the 1st day 
 of February, 1854, (see ev., page 199,) with a cash capital of 
 $100,000. 
 
 Cooley was to pay in cash, $50,000 
 
 And his time at 30,000 
 
 Making ' $80,000 
 
 And he was to share one-half the profits and losses. 
 Wadsworth was to pay in cash - $40,000 
 
 And share one-fourth the profits and losses. 
 Farwell was to pay in cash - $10^000 
 
 And his time at 30,000 
 
 $40,000 
 
 And to share one-fourth the profits and losses. 
 
 Thus making Wadsworth and FarwelPs cash and time capi- 
 tal just equal to Cooley's fcash and time capital. And Cooley's 
 share in the profits and losses being just equal to the joint in- 
 terest of Wadsworth & Farwell in the same, enables us to say 
 that the services of Cooley and Farwell and each of them in 
 this firm were by the firm considered to be equal to a cash 
 capital of $30,000 each in this firm, or $60,000, or equal to the 
 use of this amount of capital. 
 
 This firm continued its business until the -1st day of Feb- 
 ruary, 1857. 
 
 On the 4th day of December, 1856, these same partners 
 formed another copartnership, under the name of Cooley, Far- 
 well & Co., to commence business on the 1st day of February, 
 1857, and continued nearly five years, with a proposed cash 
 capital of $200,000. 
 
 Of this, Cooley was to pay in cash, $100,000, and his time, 
 and share one-half the profits and losses. 
 
 Farwell was to pay in cash, $20,000, and his time, and lie 
 was to share one-fourth the profits and losses. 
 
 Wadsworth was to pay in cash, $80,000, but no time, and 
 was to share one-fourth of profits and losses.
 
 From this it will be seen that Cooley's cash and time capital 
 was just equal to the joint cash and time capital of Favwell & 
 Wads worth, and that his share in the profits and losses w.-is 
 just equal to thcir's combined ; and that Farwell's cash and 
 time capital was deemed by the firm to be equal to Wads- 
 worth's cash capital, and because, his share in the profits and 
 losses was just equal to Wadsworth's. Thus it is seen, that 
 Farwell's time and his $20,000 in money is taken by this firm 
 to be equal to Wadsworth's cash capital of $80,000 ; and, 
 therefore, Farwell's time in this firm is taken by the firm to be 
 worth the use of $60,000. This would make the nominal cap- 
 ital in this firm as follows : 
 
 Cooley's cash and time capital, $160,000.00 
 
 Farwell's cash and time capital, - 80,000.00 
 
 Wadsworth's cash capital, 80,000.00 
 
 Making a nominal capital of, - $320,000.00 
 
 That is, had the said copartnership agreement been fulfilled. 
 It will be remembered that the time capital was rendered by 
 Cooley & Farwell to the business of this firm. 
 
 Now, let us see if Wadsworth " would have had the same 
 proportion of capital," in the second firm of C., W. & Co., 
 that he had in the first firm, and " the same proportion of capi- 
 tal" in the firm of Cooley, Farwell & Co., he had in the second 
 firm of C., W. & Co., that is, taking it for granted that his 
 and his partner's cash capital in the said last two firms were 
 derived from the business profits and capital of the said firms 
 of C., W. & Co. 
 
 Suppose that the first firm of C., W. & Co. had made a net 
 profit of $67,000 ; Farwell was entitled to one-eighth of this, 
 which would amount to the sum of - 88,375.00 
 
 His cash paid into this firm, 1,000.00 $9,375.00 
 
 Wadsworth's share of profits would be $29,312.50 
 
 His cash capital, 16,000.00 $45,312.50 
 
 Cooley's share of profits, N-J 9,312.50 
 
 His cash capital, 16,000.00 $45,312.50 
 
 Making the sum of, $100,000.00 
 
 In making up the second firm of C., W. & Co., with a cash 
 
 capital of $100,000, on the basis of the article of agreement, 
 
 (see ev. page 199,) the several partners can draw upon the
 
 46 
 
 assets of the first firm to make their several quotas, as follows : 
 
 Cooley may draw the sum of *4.">, 312. 50 
 
 He must make up from other sources, 4, 687. .50 
 
 Thus making his quota of capital in second firm. so 0,000. 00 
 
 Wadsworth may take his full share of his 
 
 capital stock in the second firm, to wit : 40,000.00 
 
 and then have $4,687.50 left him for 
 
 private use. 
 Far-well has the sum of * 0,3 75. 00 
 
 and must make up from other sources, 625.00 
 
 thus making up his cash capital to >> 10,000.00 
 
 Now, suppose this second firm of C., W. & Co. made a net 
 profit in their business of the sum of $100,000.00, and these 
 partners agree to form a new firm, with a capital of $200,000, 
 under the name of Cooley, Far well & Co., and they were each 
 of them to use, as far as possible, their several moneys in this, 
 to make up the capital stock of the new firm, how would their 
 several accounts stand in the new firm, " proportionably V" 
 Cooley is to furnish to the new firm - $100,000 
 
 He brings his capital from the old firm of $50,000 
 
 and his one-half share of the profits, 50,000 $100,000 
 
 Thus he makes up his full quota from that source. 
 Farwell is to furnish $20,000 
 
 He brings his capital from the old firm of $10,000 
 
 and his one-fourth share of the profits, 25,000 
 
 Making, 
 Deduct the capital he is to furnish, 
 
 and he has a surplus of - $15,000 
 
 Wadsworth is to furnish capital to the new firm, - $80,000 
 He brings his capital from old firm of - $40,000 
 
 and his profits, 25,000 $65,000 
 
 Thus it is seen that Mr. Wadsworth is short $15,000, and Far- 
 well has a surplus of $15,000, thus showing conclusively that 
 the "proportion" of Wadsworth'' s capital relatively to his 
 partners in the firm of Cooley, Farwell & Co., when derived 
 solely from his interests in the preceding firm or firms, is not, 
 and cannot be made, by any calculation, the same as in the said 
 preceding firms. If it was, then he would not have been short 
 $15,000, and Farwell would not have had a surplus of $15,000.
 
 47 
 
 It is true that the several partners, at the time of the organ- 
 ization of the said firm of Cooley, Farwell & Co., expected to 
 1)0 able to realize more than was necessary to make up their 
 several shares of cash capital stock to that firm from the assets 
 of the preceding firms, as these assets amounted at that time 
 to nearly $300,000. And it is true that these expectations 
 were not fully realized, by reason of the severity of the times. 
 These times were not expected to occur, but they did come, 
 and that, too, suddenly. 
 
 The complainant well knew, at the time of the organization 
 of the firm of Cooley, Farwell & Co., that he had agreed with 
 his partners to divide the goods on hand from the second firm 
 of C., W. & Co., amounting to $115,369.84, between them in 
 the ratio of profits, as shown by his bill of complaint, as heroin- 
 after noticed, and which was to be put into their several stock 
 accounts after it was so divided, as capital in this neAv firm ; and 
 he knew that Cooley's share of such goods was half, and there- 
 fore he (Cooley) received a credit to his stock account in this 
 new firm of $5*7,684.92 ; that Wadsworth's share was one- 
 fourth, and that he received a credit to Ms stock account in 
 this firm of $28,842.46 ; that Farwell's share was one-fourth, 
 and that he received a credit to his stock account in this firm, 
 from that source, of $28,842.46. He also knew that they had 
 agreed to divide the goods on hand from the first firm of C., 
 W. & Co. between them in the ratio of profits, and then put 
 each partner's share of goods so divided into the second firm, 
 as so much capital stock to his credit in that firm ; and he 
 knew further that he, with Cooley, received the entire receipts 
 of all collections from the remaining assets, which were divi- 
 ded between them, and credited to their stock accounts in the 
 said firms of C., W. & Co. No. 2, and C., F. & Co., and that 
 the books contained the entries and evidence of such agree- 
 ments and divisions of the goods so on hand at the close of 
 said firms of C., W. & Co. Nos. 1 and 2 ; and yet, with this 
 knowledge and these entries in the books of accounts, and his 
 own statements and admissions in his bill of complaints, In- 
 comes into court with an allegation denying it all. 
 
 From the foregoing statements, it must appear that the com- 
 plainant's allegations are untrue : first, in stating that the firm 
 of C., F. & Co. was a continuance of the firm of C., W. & Co., 
 and that he would have the same proportion of capital relative-
 
 48 
 
 ly to his partners in the firm of C., F. *fc Co. that he had in the 
 firm of C., W. & Co. ; second, in stating that the sum of 
 $200,000 cash to the capital stock of C., F. & Co. was to be 
 paid in only 011 condition that the same was fully realized from 
 the assets of the previous firms. (The articles of agreements, 
 and the increasing business done by these firms show that they 
 expected each partner to make up his full quota of capital.) 
 Third, in stating that complainant had no knowledge of the 
 condition of the books, nor of the transfer and division of 
 goods, and that he relied wholly upon Mr. Farwell's state- 
 ments, &c. 
 
 We have proved complainant to be a shre\\~d, sharp, and 
 cautious business man, by several witnesses. Mr. Spink, who 
 has known him long, so testifies, and so does C. M. Henderson, 
 and others. 
 
 Mr. Leiter testifies, in his second deposition, on page 692, 
 I. 9, that at and prior to the date of said instrument of disso- 
 lution, to wit., January 21, 18*52, the complainant with his said 
 partners "were for many days holding private meetings or 
 consultations in their private office where the books of ac- 
 counts were kept." 
 
 Complainant sets forth as one of the reasons why the -said 
 agreement should be set aside for fraud, that he does not 
 stand in the firm of C., F. & Co. relatively to his partners, as 
 well as he did in the firm of C., W. & Co., and that the rea- 
 son for this is, that he was ignorant of the mode of transfer of 
 the accounts and assets from the books of the firm of C., W. 
 & Co., to those of C., F. & Co. 
 
 How could he stand as well '? Does he suppose that Cooley 
 & Farweil are to put money into his pocket gratuitously ? Has 
 he lived so long upon their labors and skill Avithout a fair com- 
 pensation, under the agreements with him, that he now in his 
 greed asks this court to come to his aid and compel them to 
 yield to his inordinate covetousness by casting aside and riding 
 over his solemn agreements with them *i And to induce this 
 court so to decree, he comes in with a statement that he is in- 
 capable in his iinderstanding, and in his nature he is and was 
 confiding, and that he never examined the books of accounts ; 
 and then on the heel of this, he says he made the said agree- 
 ment because of the statements of Cooley *fc Farweil to him 
 at that time, and " becmise the books (which he examined, of
 
 49 
 
 course), of accounts supported these statements." He, first, 
 says he never examined the books of accounts ; second, that 
 he did examine them, and they confirmed the statements of 
 Cooley & Farwell ; third, that if he had examined the books 
 lie would not have understood them ; and, fourth, that he ex- 
 amined them and they mi. -led him. 
 
 HOAV could he stand as well in the last firm, relatively, as he 
 did in the first ? He had not furnished any capital to this new 
 firm, except that which he derived from the former firms, and 
 he must have known that in order to stand as well, relatively, 
 he must furnish other capital than that from the former firms, 
 and because he did not have it in a converted form in those 
 firms. He knew of the agreement to divide the goods between 
 partners in the ratio of profits. He knew that from this source 
 he had derived a credit to his capital stock in the sum of 
 $28,842.40, and from collections the sum of $10,419.00, making 
 the sum of $39,281.46. He also knew that he had been or was 
 to be charged with a balance of interest in the amount of 
 $12,097.02, for he has presented the evidence of this knowledge 
 in his said " Exhibit A" to Mr. Spink's deposition on page 44 
 of ev., and yet he desires this court to conclude that he is ig- 
 norant a weak-minded and confiding man, and that he never 
 had this knowledge himself, but confided wholly to Mr. Far- 
 well's statements, and that these statements did not reveal 
 these facts, and thereby he has been deceived. What effront- 
 ery to throw up into the face of the court, in view of the evi- 
 dence that his allegations and pretentious are utterly untrue. 
 
 N. B. But I must not omit to call especial attention to an- 
 other clause in his said allegation, to-wit, that complainant "in 
 all respects had fulfilled his agreements with his partners, ac- 
 cording to the spirit and intent of his said agreements of De- 
 cember 4, 1856." Let us see by the evidence Avhether he did 
 or not. 
 
 First. In violation of this and all former agreements, he 
 formed a copartnership, on the 1st day of February, 1857, with 
 a wholesale clothing house in the city of Chicago, under the 
 name of Huntington, Wadsworth & Parks. 
 
 Second. In violation of his said agreement, he, on the 1st 
 day of March, 1859, formed a copartnership with C. M. Hen- 
 derson, to carry on the Avholesale trade in boots and shoes, in 
 the city of Chicago, under the firm name of C. M. H. tfc Co.
 
 50 
 
 Third. In violation of his said agreement, he formed a co- 
 partnership with Letz & Co., to cany on the iron trade in the 
 city of Chicago. 
 
 Fourth. In violation of said agreement, he neglected to 
 pay into the capital stock of said firm his share thereof, to-wit, 
 the sum of $80,000, and left his said account in arrears about 
 $40,000. 
 
 Fifth. In violation of his agreement, he drew from the as- 
 sets of the said firm of C., F. & Co. the full sum of $47,125.27, 
 see evidence, page 207, cross-int. 148. 
 
 Sixth. In violation of his said agreement and its true intent 
 and spirit, he endorsed the paper of the said firm of Hunting- 
 ton, Wadsworth & Parks, to the amount of about $155,000 to 
 $200,000, and that of Letz & Co. to the amount of from 
 $25,000 to $50,000, and thereby embarassing himself to such 
 an extent that he lost his credit and influence. It is an old 
 maxim that "he that seeks equity must do equity." Not in a 
 single instance has he fulfilled his said agreement with his 
 partners, save one, and that is, he has taken his share of the 
 profits, and now stands crying for more, like the "horse-leech," 
 and his cry is still, give me more ! 
 
 FIFTH ALLEGATION. 
 
 5. On pages 14 and 15 of bill, complainant, alleges, " that 
 " a part of the assets of the firm of C. N. Henderson & Co., 
 " prior to the formation of the firm of C., F. & Co. had been 
 " turned over to the firm of C., W. & Co., as security for 
 " advances made on- account of the liabilities of the firm of C. 
 " N. H. & Co., and that such assets (so turned over) failed to 
 " realize the amount of such advances and the account remained 
 " opened until early in the spring of 1859, and that at this time 
 " Cooley & Farwell had acquired a little independent credit 
 " of their own and had become acquainted with buyers and 
 " sellers east and Avest and in a manner independent of com- 
 " plainaut, and with a view of expelling complainant from the 
 " firm of C., F. & Co. ; they stated to complainant that his 
 " account with said firm was largely overdrawn and that com- 
 " plainant had violated the terms of said copartnership and had 
 " forfeited his right to continue longer a member of said firm ; 
 " and threatened to declare the articles of copartnership for- 
 " feited, etc., an.d that as a condition of complainant's being
 
 " allowed to remain a partner in that firm, he should repay said 
 " firm the said advances on account of C. N. H. & Co., and 
 " take upon himself the labor and responsibility of reimbursing 
 " himself out of said Henderson assets and being unwilling to 
 " be ejected from said firm, complainant agreed to assume the 
 " said Henderson account And to pay said firm (C., W. & Co.) 
 " their said advances, and that such advances amounted to 
 " $19,000. That he paid to said firm $6,000, and that the 
 " balance of $13,000 was charged to his private account under 
 " date April 1st, 1859. And that the statement of Cooley and 
 "JFarwell, that complainant's was overdrawn, was untrue, and 
 
 " That complainant's private account was relatively as good 
 " as the private account of either of his partners, and many 
 " thousand dollars better than Farwell." If Farwell was not 
 a partner in the firm of C. N. H. & Co., what has Farwell as 
 a partner in the firm of C., W. & Co. to do in advancing $19,- 
 000 to the firm of C. N. H. & Co. ? Why does complainant 
 constantly mix Farwell up with the interests of the firm of C., 
 W. & Co. to such an extent, if he was not a partner therein '! 
 
 But these allegations the defendants deny and insist, that 
 instead thereof, that 
 
 1st. The firm of C., W. & Co. never received the assets of 
 the firm of C. NT. H. & Co., to secure said firm of C., W. & 
 Co. for its advances to C. N. H. & Co., by reason of its 
 liabilities. 
 
 2d. They insist that at that time complainant was in copart- 
 nership with the young man C. M. Henderson, in the boot and 
 shoe trade in Chicago, under the firm name of C. M. Henderson 
 & Co., he was using them for his personal interests, and they 
 well might so suppose, for he had the assets a long time. % 
 
 3d. They insist, that the credit and independence of Cooley 
 & Farwell of complainant, existed from their acquaintance 
 with and was not acquired by or through him. 
 
 4. They insist that complainant had overdrawn his private 
 account and that it did not stand relatively as well as.C. <fc F's. 
 
 5. They deny that they imposed upon complainant the 
 necessity of paying the firm of C., W. & Co. $19,000 and then 
 required him to " take upon himself the labor and respon- 
 sibility of reimbursing himself out of the said assets, as a con- 
 dition to his remaining in said firm of C., F. & Co." (But if 
 this was so, then it was a good consideration) but on the other
 
 hand, they insist that the interest of the firm of C., W. & Co. 
 in said assets amounted to about $19,000, and that said firm 
 sold said interest to complainant for about $14,807.22, and that 
 $13,000 of this amount was charged to the private account of 
 complainant on the books. 
 
 6. The defendants state that complainant's account was 
 relatively overdrawn, and 
 
 7. They deny that complainant's private account was " rela- 
 tively as good as C. and F. and many thousand dollars better 
 than Farwell's." 
 
 Who stands supported by the evidence, the complainant or 
 defendants ? 
 
 The articles of copartnership of these several firms, and the 
 books of account introduced in evidence by the complainant, 
 contradict his allegations, while he has failed to introduce any 
 evidence to prove by other means the truth of the same. 
 
 1st. "Where is his proof that he paid $6,000 beside said 
 charge to his account of $13,000 for the said advances of C., 
 W. & Co. to C. N. H. & Co. ? He has failed to produce any, 
 and he cannot, for it is untrue. 
 
 2d. What proof is there that Cooley and Farwell had no 
 independent credit and influence of their own until the spring 
 1859, and up to this time their independence and credit de- 
 pended upon his ? He has not produced any, and he cannot, 
 for this is likewise untrue. 
 
 3d. What proof is there, that Cooley & Farwell tried to 
 eject complainant from the firm of C., F. & Co. hi the spring 
 of 1859 ? " They deny the allegation. Mr. C. M. Henderson 
 testifies, " that Wadsicorth told him he must leave either the 
 firm of C. M. Henderson & Co., or that of C., F. & Co., unless, 
 the afiairs between the estate of C. N". H. and Cooley, Wads- 
 worth & Co. were settled, and that complainant stated to him 
 that he had bought the said assets, or the interest of C., W. & 
 Co. for $13,000." This is absolutely all the testimony on this 
 point. Does this prove this allegation? By no means. 
 
 4th. What proof is there, that Cooley & Farwell threatened 
 to turn complainant out of the firm of C., F. & Co., unless he 
 paid to C., W. & Co. $19,000 and take the labor and responsi- 
 bility of reimbursing complainant out of said assets ? There is 
 absolutely no evidence whatever to sustain this charge.
 
 58 
 
 There is testimony upon the questkm, whether or not, com- 
 plainant's private account Avas overdrawn in the firm of C., F. 
 & Co., and that his private account was relatively much larger 
 than his said partners. We will turn to it. 
 
 1st. The agreement (see page 199 of printed ev.) of Dec. 4, 
 1856, by which this firm was organized, provides, that " each 
 partner during the 5 years of that term of copartnership, were 
 to be allowed to draw for private purposes, only $4,000." 
 How much did the several partners draw up to Jan. 21, 1863? 
 
 Wadsworth drew from the firm of C., F. & Co. the sum of 
 $52,376.38 for private use. (See Spink's answer to the 86 
 cross, page 110.) 
 
 Mr. Spink, in his direct examination on page 45, Int. 60, tes- 
 tifies, " that the private account of Wadsworth, on the 25th of 
 January, 1862, was $46,863.52." 
 
 (It will be observed that the charge of $2,538.47, and seve- 
 ral other items, not entered upon the ledger on the 21st of Jan- 
 uary, 1862, had been in fact drawn by Wadsworth prior to the 
 21st of January, 1862, though not entered till the 24th. (See 
 Spink's ev., % page 45, int. 59.) 
 
 In his cross-examination, on. page 110, cross-int. 86, he tes- 
 tifies, " that the amounts drawn by the partners from the 1st 
 day of February, 1857, to the 21st of January, 1862, for pri- 
 vate use, were as follows : 
 
 By Cooley, $45,783.86 
 
 By Wadsworth, 52,376.38 
 
 By Farwell, 32,364.71 
 
 On page 206, cross-int. 148, he testifies, "that the several 
 amounts drawn by the partners from the funds of Cooley, Far- 
 well & Co., for private purposes, were as follows : 
 
 By Cooley, $45,783.67 
 
 By Wadsworth, 47,125.27 
 
 By Farwell, 26,993.16 
 
 On page 180, in his examination in chief, int. 93 and 94, he 
 testifies, " that the amount drawn by Wadsworth on private 
 account, from the firm of C., F. & Co., up to 21st January, 
 1862, was $34,310.05. 
 
 But during the time from the 1st of February, 1857, to 21st 
 January, 1862, Wadsworth also received moneys, as follows :
 
 54 
 
 From collections of C. N. H. & Co., $2,527.86 
 
 From 1st firm of C., W. & Co., 13,000.00 
 
 From C., F. & Co., 2,538.47 
 
 Making the said amount (as above) of - $52,376.38 
 
 On page 178, int. 86, in his examination in chief, Mr. Spink 
 testifies, " that the drafts of the partners being in the ratio of 
 profits, and Far well's draft in the 1st firm of C., W. & Co., 
 being $11,037.79, Cooley and Wadsworth would be entitled to 
 draw the sum of $50,119.02 ; but in the said amount of $11,- 
 037.79 to Farwell, the loan to him of $5,000 and the interest 
 thereon, in erroneously included." 
 
 On page 205, cross 141, he testifies, "that Farwell, instead 
 of drawing fro in the funds of C., W. & Co., No. 1, the said 
 sum of $11,037.79, as above stated, he only drew in fact the 
 sum of $2,159.56." And in cross 142, page 205, he says "that 
 said loan and interest ought not to have been included in said 
 amount, because it was a special loan to Farwell." 
 
 On page 112, cross 89, Mr. Spink testifies, " that in the 2d 
 firm of C., W. & Co., Cooley and Farwell, to be, equal with 
 Wadsworth in their drafts, would have been entitled to draw 
 more than they did, the sum of $16,436.71." 
 
 On page 112, cross 87, he testifies, "that in the firm of 
 Cooley, Farwell & Co., Cooley and Farwell, to be equal with 
 Wadsworth in their drafts, would have been entitled to draw 
 the'sum of $66,452.57 more than they did." 
 
 Mr. Spink testifies on page 209, cross 153, " that the actual 
 per centage on cash and time capital paid and rendered to the 
 firm of Cooley, Farwell & Co., by the several partners, were 
 as follows : 
 
 By Cooley, 5 If per cent, of the whole amount. 
 
 By Farwell, - 33 " . " " 
 
 By Wadsworth, 15 " " " 
 
 On page 112, cross 90, Mr. Spink testifies, "that the deficit 
 of capital and over draft of the complainant, on the basis of 
 his testimony in chief and on the basis of the books, relatively, 
 to his partners, were as follows : 
 
 On the basis of the books his over draft was - - $55,764.32 
 On the basis of Spink's examination in chief his over 
 
 draft was - - 34,453.89
 
 55 
 
 On page 90, cross 67, he testifies " that the books were kept 
 accurately," and on page 105, cross 74, 75 and 76, he says, 
 " the books show full credits and no erroneous charges, and 
 
 ~ t 
 
 that there are no accounts properly chargeable but what have 
 been charged or paid ;" and on page 107, cross 77, he says, 
 " there, was no injury done or impropriety in leaving the build- 
 ing account on the books in that manner." 
 
 The evidence there clearly shows that the credit and inde- 
 pendence of Cooley and Farwell did not depend upon either 
 the complainant's credit or capital, for it shows that, relatively, 
 he was far behind both of them in his capital and credit, and 
 that he was ahead of them only in his over drafts upon the 
 funds of the firm for his private use. So far from complain- 
 ant's sustaining the business and credit of the firm by his 
 money and influence, he became the source of the firm's great- 
 est weakness, and the whole responsibility of the business and 
 the credit of the firm was met by Cooley and Farwell alone, by 
 their money, influence and energy. 
 
 On the basis of Spink's examination in chief, which, he says, 
 on page 83, cross 46, 57, he " adopted because he was so in- 
 structed by complainant and his counsel, WadswortJi's acc't 
 relatively was overdrawn $34,453.89, and on the basis of the 
 books his over drafts and deficit of capital is $55,764.32." 
 (See page 112, cross 90.) 
 
 Is not, then, his account largely overdrawn V 
 
 But he (complainant) says he did not know how his account 
 stood, except by the statements of Cooley and Farwell to him 
 about the 21st of January, 1862, which induced him to make 
 said agreement of that date. Mr. Leiter answers him upon 
 this denial, as follows : 
 
 On page 72, int. 9, 10 and 11, Mr. Leiter (the book-keeper) 
 testifies, " that Wadsworth and Farwell kept their office with 
 the firm of C., F. & Co., up to February 1, 1862, and that all 
 the partners had free access to the books." 
 
 On page 473, int. 12, he says, "that some time in 1859, 1860 
 or 1861, complainant requested of him a statement of his ac- 
 count in the several firms, and that he gave him such an ac- 
 count, showing the moneys he had drawn, his proportion of 
 the profits so far as they were divided, also the stock paid into 
 the several firms. In the account of C., F. & Co., the profit
 
 56 
 
 and loss account was not divided, but I gave him the aggre- 
 gate." 
 
 In answer to the 14th int., he says, " that Avhenever either 
 of the partners desired information of him personal to them- 
 selves, touching the books of account, ho gave them the infor- 
 mation they wanted, so far as he knew." 
 
 On page 574, int. 15, he testifies, "that annual statements 
 were made of the merchandise and moneys drawn by each 
 partner, and that each partner's statement was given to him ;" 
 and in answer to the 16th int., he says, " At the close of each 
 year, the moneys drawn by each partner was placed to his ac- 
 count in the back part of the ledger ; the net profits were 
 placed to a profit and loss account in the ledger ; and beside 
 these entries (int. 17,) there appeared on the books of C., W. 
 & Co., the capital furnished by each partner to the capital 
 utock ; and on the books of C., F. & Co., the capital that was 
 to be furnished to the firm." 
 
 On page 574, int. 18, he testiiies, ' ; that after the close of the 
 firm of C., F. & Co., Mr. Wads worth inquired of him about a 
 charge of $13,000 made to him for a portion of the assets of 
 C. N. H. & Co., and wished to know if that had not been 
 charged twice, and he told him, no ; that it was passed through 
 both sets of books, but it resulted only in one charge ; and he 
 replied, 'how about the balance?' (which witness interpreted, 
 if anything had been twice or wrongfully charged.) I replied 
 to him, ' no, unless a matter of interest.' (Int. 19). He made 
 no reply, that I remember. This was between the 1st of Feb- 
 ruary and July, 1862," (more than a year before he filed his 
 bill of complaint). 
 
 On page 577, int. 34, he further testifies, " that beside the 
 said annual statements, there Avere trial balances made out 
 quarterly, and at the end of each year, after the books were 
 balanced, which could be seen at any time. The last trial bal- 
 ance showed the condition of the books of the firm after the 
 different profit and loss accounts had been closed into stock, 
 and also the private account of the partners charged up to 
 stock." 
 
 On page 594, cross 46, he testifies "that the debit balance 
 of interest to the account of complainant, on the 1st of Feb- 
 ruary, 1862, OR the books was 7,961.60."
 
 5T 
 
 On page 591-2, int. G4 and 65, he testifies, that the said 
 ' Exhibit A,' (on page 44 to Mr. Spink's) is made up as follows: 
 
 The credit of $28,842.46 was derived from one-fourth of the 
 merchandise on hand February 1st, 1857, and the credit of 
 $10,419 was derived f.'om collections from the assets of C., W. 
 <fi Co.. No. 2, and that the charge of $12,097.02 to Wads- 
 worth in said " Exhibit A" was interest charged to him on 
 shnrlt!'-.- of capital ; but there was an error made in Wads- 
 worth's favor in casting the interest.' 1 '' (See, also, Simeon Far- 
 well's testimony, on page 624, int. 10, 11 and 12.) 
 
 From all this testimony, how could the complainant help 
 knowing that his account was relatively -Ip***? than his part- 
 ners ? How could he help knowing of his interest account in 
 said exhibit ? How could he help knowing all about the books 
 of account? How could he help knowing of the division of 
 said merchandise ? 
 
 " To conclude that he did not know, Ave must first conclude 
 in opposition to the evidence that the complainant was more 
 stupid than his best friends are willing to allow. This Court 
 cannot come to any other conclusion than that he did know 
 or might have known just how all matters of account stood in 
 the books, and that he also knew how his account stood rela- 
 tively to that of his partners, and that his allegations, last above 
 referred to, he knew were untrue ; and he knows as well, that 
 the defendants' replies thereto are true. The evidence prove 
 their replies true. 
 
 SIXTH ALLEGATION. 
 
 On page 15, complainant further alleges, "that he never dis- 
 " covered his mistake, (that is, that his account was relatively 
 " overdrawn) until he caused the books of said firm of C.,|F. 
 & Co., to be examined, (to wit, in March, 1863.") 
 
 Mark this language ! " He never discovered his mistake 
 until he caused the books of said firm, to be examined." He 
 does not charge fraud upon Cooley and Farwell, or either of 
 them, or that they or either of them knowingly deceived him ; 
 bat that he (complainant) made a mistake when he examined 
 the books, in not discovering that his account was not, rela- 
 tively, overdrawn. What is more clearly presented in this al- 
 legation, than the fact, that before he made said agreement of 
 January 21, 1862, he examined, for himself, the said books of 
 account ? The language he employs leaves no doubt of it. If,
 
 58 
 
 then, his account was in fact overdrawn, he did not even make 
 the mistake he claims he did. What if he did make a mistake 
 in his figures when he examined the said books of account ; it 
 is his own and not theirs, and he is responsible for it. But the 
 evidence shows that he was largely overdrawn. If he made 
 a mistake, it was not because the channels of information were 
 not open to him. No one pretends to say that they were not. 
 Are we to presume, then, that he, in his examination into the 
 condition of the firm and into his private account and that of 
 his partners, when he made this agreement of the 21st of Jan 
 tiary, 1862, that he made a mistake, and that from his examin- 
 ation of the books he supposed his private account was rela- 
 tively larger than his partners, and that in this he was mis- 
 taken ? And for this reason, is this Court to interfere, and set 
 this agreement aside ? 
 
 The defendants, in their answer, deny that the complainant 
 even made a mistake, as to the relative rights of the partners, 
 or, as to his private account, relatively, to theirs ; and insist 
 that complainant, upon his own judgment, after a lull examina- 
 tion of his account and rights relatively to that of his partners, 
 he made the said agreement. 
 
 For the truth and falsity of these opposing positions, we 
 will call especial attention of the Court to the declarations of 
 the complainant himself. 
 
 On page 18 of his bill, he says, " that the books of account 
 of said firm of Cooley, Farwell & Co., at this time (when said 
 agreement was made, to wit : 21st January, 1862,) were kept 
 in such a manner as to give color to the representations of said 
 Cooley and Farwell that your orator had overdrawn his account 
 with said firm, and your orator states that he relied upon said 
 representations. And on the 21st day of 
 
 Jamiary, 1862, he made said agreement with his partners." 
 
 By this allegation he states two things, to wit : 
 
 1st. " That Cooley and Farwell made certain representa- 
 tions to him;" and, 
 
 2d. " That the books of account of said firm, at that time, 
 Avere kept in such a manner as to give color to the said repre- 
 sentations." 
 
 How did he know that the said books gave color to the truth 
 of said representations, if he did not examine them ? How is 
 the Court to ascertain, in the absence of proof, that he relied
 
 59 
 
 ni that timr wholly upon the said representations ? If he did, 
 why did he examine the books at all to see whether they sup- 
 ported or not said representations ? This shows that his re- 
 liance was upon the books, and not upon what Cooley and Far- 
 well may have said to him. 
 
 Mi\ Spink testifies on page 105, cross 73, " that the books 
 " show full credit to each partner for the actual capital origin- 
 " ally paid into the first firm by each of them. They show full 
 " credit for the share of profits in the three firms, to which 
 each was entitled, and I found no erroneous charges, other than 
 those of interest ;" (which witness discovered was made in 
 favor of Wadsworth.) 
 
 What can be more clear, then, than that when Wadsworth 
 made said agreement of the 21st of January, 1862, he made 
 it upon the basis of the books ; upon the basis that the mer- 
 chandise on hand at the close of the second firm of C., W. & 
 Co., were divided between the partners ; in the ratio of profits 
 to wit: half to Cooley, and a quarter each to Wadsworth 
 and Farwell ; upon the basis that this merchandise, so divided, 
 was to be put into the firm of C., F. & Co., in that ratio by 
 each of the partners, as so much capital stock, to their respect- 
 ive credits ; and upon the basis that interest was to be charged 
 and credited upon deficiency and overplus of capital in that 
 firm from the capital agreed upon, and upon the sums drawn 
 by the partners for private use. 
 
 But, strange to say, he pretends, and so alleges, that he did 
 not know of the division of goods in the ratio of profits, while 
 in the face of this allegation, w*, ton page 148, "Exhibit No. 2" 
 attached Mr. Spink's depositionTtne stock note given by Wads- 
 worth to Cooley, Wadsworth & Co., in the sum of $40,000 ; 
 and upon its back there is an endorsement as follows : " Received 
 hereon, March 1, 1854, in merchandise, 28,842.35 ;" and this 
 Mr. Spink informs us is Mr. Wadsworth' s share of the merchan- 
 dise then on hand from the former firm, divided in the ratio of 
 profits between the said partners. More than this, similar en- 
 dorsements were made on the stock notes of Cooley & Far- 
 well by the division of said goods in the same ratio. (See ex- 
 hibits Nos. 1 and 3 to Spink's deposition on page 148.) By 
 reference to ''Exhibit A" to Mr. Spink's deposition on page 
 44, it will be seen that the merchandise on hand at the close of 
 the second firm of Cooley, Wadsworth & Co. was divided be-
 
 60 
 
 tween the partners in the ratio of profits, and that Wadsworth 
 received credit upon his capital stock in the firm of Cooley, 
 Farwell & Co., one-quarter of the same, to-wit, $28,842.46. 
 This "exhibit A" was in Wadsworth's possession at the tune, 
 and he voluntarily brings it forward and makes it evidence, 
 not, to be sure, to prove that he knew of the said division of 
 merchandise in the ratio of profits, nor to prove that he knew 
 of the said chai-ge of interest upon his deficit of capital, con- 
 tained in said exhibit, but nevertheless it does prove these two 
 things. It is true that by this exhibit he intended to make it 
 appear that it and the books did not agree on the 1st of Feb- 
 ruary, 1862, and we do not pretend that they did ; but we do 
 say, and so does Mr. Spink, that said "exhibit A" and the 
 books substantially agreed on the 20th of January, 1862, the 
 day before the said agreement was made. 
 
 That the complainant made a mistake, I have no doubt ; but 
 it was not as he would have this court believe, in his relative 
 position in the firm to that of his partners, and their respective 
 accounts. He then understood what his standing and rights 
 were as fully as now. But he made a mistake, and the ques- 
 tion is what it was. Let the evidence outside of the bill speak, 
 as well as the bill itself, and then we shall know what it was. 
 
 On page 620, Int. 7, John H. Dunham, one of our best citi- 
 zens, testifies "that complainant stated to him in November, 
 "1833, as the reason for complainant's retiring from the said 
 " firm of Cooley, Farwell & Co., that the future was so uncer- 
 " tain that each one of these gentlemen, himself, (complainant) 
 " Cooley and Farwell, were each desirous of retiring from bu- 
 " siness. And he stated in connection with that, that it was a 
 mistake on his (Wadsworth's) part in retiring from business." 
 On page 621, Int. 9, Mr. Dunham testifies that complainant 
 farther said to witness that " the uncertainty of commercial 
 " affairs in the future was the reason he assigned for his retir- 
 "ing; that in their negotiations, his partners felt very much 
 " as he did." On page 620, Int. 8, fie further testifies, " that 
 " there was much said in this conversation with complainant 
 " upon the general feeling of uncertainty for future business." 
 " That the war looked very much like terminating the January 
 " preceding this conversation. Had it closed, disaster would 
 " have overtaken every man engaged in business. He asked 
 " ine if that was not the feeling. I told him it was, so far as
 
 61 
 
 " 1 knew." On page 620, Int. 5, he further testifies, " that 
 " complainant gave him, (witness), the impression in said con- 
 " versation, that there were mistakes made by Farwell in his 
 " manner of book-keeping." On page 621 Mr. Dunham testi- 
 fies " that he is acquainted with complainant's reputation for 
 " ability, for sharpness, for shrewdness and cautiousness as ;v 
 " business man ;" and that he " had the reputation of being a 
 ' shrewd and a sharp business man. I think his general repu- 
 " tation for caution was fully equal to the average of business 
 " men." 
 
 There is, then, no evidence to sustain complainant's allega- 
 tion that he made a mistake, except in that of his judgment in 
 retiring from said firm of C., F. & Co. And it will be remem- 
 bered that at the time he made this said agreement, he had, in 
 fact, by the terms of the copartnership agreement, only ten 
 days longer to remain in business with his partners ; so that in 
 fact his interest in the firm was confined to his share in the di- 
 vision of assets, and the fact that at that time the said firm was 
 owing about $430,000, and its unrealized assets amounted to 
 only $512,000.00 (see Spink testimony, page 70, cross-int. 29), 
 it became a matter of great moment with Wadsworth, in the 
 then unsettled prospects of business, to shirk the labor and re- 
 sponsibility of raising this large amount of money to pay said 
 debts with, and to throw said labor and responsibility upon 
 Cooley & Farwell ; and this it was, in fact, that induced the 
 complainant at that time to make the agreement Tie did] and 
 his allegation to the contrary is wholly unsupported and untrue. 
 SEVENTH ALLEGATION. 
 
 On page 15, complainant further alleges, " that Simeon Far- 
 " well and Marshall Field were partners in the said firm of 
 " Cooley, Farwell & Co., and that Field was to receive one- 
 " eighth of the profits." 
 
 The defendants deny this allegation, and say that they were 
 clerks, receiving a salary from the said firm. 
 
 The testimony of Simeon Farwell, on page 623, Int. 6, puts 
 this part of the controversy to rest. He says " that partners 
 in the firms of C., W. & Co. Nos. 1 and 2, and C., F. & Co. 
 were Cooley, Wadsworth and John V. Farwell." Mr. Leiter 
 testifies, on page 571, Int'ys 3, 4 and 5, " that the firms of C., 
 W. & Co. and C., F. & Co. were composed of Cooley, Wads- 
 worth and John V. Farwell." Mr. Spink testifies, on page 214
 
 62 
 
 ci'oss int. 167, " that Mr. Field does not, from [the books nor 
 from the articles of copartnership, appear to have been a part- 
 ner. He was not credited with profits nor charged with losses." 
 There is no proof that either Simeon Farwell or Marshall Field 
 were partners in said firm ; but on the contrary, there is posi- 
 tive testimony showing beyond all controversy, that they, (Si- 
 meon Farwell and Marshall Field), nor either of them, were 
 ever partners. If Simeon Farwell and Field were partners, 
 why were they not parties to the said agreement of the 21st of 
 January, 1862 ? This fact shows that the complainant was 
 not in ignorance upon their positions and relations to said firm, 
 but he thought he could make something by this allegation by 
 way of making out his ignorance of facts and perhaps his own 
 imbecility. 
 
 EIGHTH ALLEGATION. 
 
 On page 16 complainant states, "that said firm of C., F. & 
 " Co. continued their business down to the 9th day of January, 
 " 1862, at which time said firm had large assets in bills receiv- 
 " able, choses in action, real estate and merchandise and other 
 " property, all, except the capital stock of said firm, being the 
 " fruit of the aforesaid copartnership (C., F. & Co.) business, 
 " and all belonging to the aforesaid copartnership (C., F. & 
 " Co.) business, and all belonging to the aforesaid copartners 
 " (to-wit, Cooley,^ Wadsworth, Field, John V. Farwell and 
 " Simeon Farwell) in proportions~'provided for in said copart- 
 " nership articles. And on the said 9th day of January, 1862, 
 " said Cooley and John V. Farwell caused an account of stock 
 " to be taken, and that the said firm then had on hand in mer- 
 " chandise $161,041.89 at invoice price as part of the assets, 
 " and that date a great change had begun to take place in the 
 " relative value of goods and money goods began steadily to 
 " advance, and the said merchandise was the most desirablo 
 " part of the assets. And that up to this time Cooley & Far- 
 " well were familiar with all the details of the business and 
 " that complainant was wholly ignorant of the books of account 
 " and the relative condition of the private account of the part- 
 " ners and of the condition of the business, and that he had no 
 " information upon any of these subjects, except as he derived 
 " it from the statements of his partners."
 
 63 
 
 From the review already had, it will be remembered, that 
 we have discussed, or rather considered the evidence, showing 
 that neither Simeon Fanvell or Marshall Field were partners 
 in the said firm of C., F. & Co., and also showing complainant 
 had knowledge of the books of account, or might have had, 
 and also of his account relatively to that of his partners and 
 that the same was relatively largely overdrawn, and that com- 
 plainant's allegation of ignorance upon the matters aforesaid, 
 the evidence shows to be a mere pretence, and therefore, upon 
 these, I shall not spend any more time, but will take up those 
 portions of this allegation, which we have not considered. 
 
 The defendants in their answer admit, that said firm con- 
 tinued till the 9th day of January, 1862, and at that time had 
 large assets ; but they state that at that time, the said firm was 
 indebted to sundry persons in about the sum of 8430,000. 
 They also admit that at that time an invoice was taken, and 
 that there was found to be on hand at invoice price merchan- 
 dise (including store furniture and fixtures) to the amount of 
 $161,041.89. But defendants deny that at that time a great 
 change began to take place in the relative value of goods and 
 money, and they deny that from that time goods began steadily 
 to advance ; and insist that there was great uncertainty in 
 regard to future business everywhere. 
 
 There is then but two statements in this allegation, that have 
 not been either reviewed under the evidence, or admitted by 
 the defendants, and these are as follows : 
 
 1. The complainant's charge, that a great change began to 
 take place in the relative value of money and merchandise ; and 
 2d, that merchandise from the 9th of January, 1862, began 
 steadily to advance. These statements defendants deny. Let 
 the evidence decide. 
 
 On page 428, int'y 5, Thomas L. Rushmore, a Avholesale 
 merchant in New York for 22 years, testifies that on the 21st 
 day of Januaiy, 1862, that the value of broken stocks of 
 goods in New York, " would depend somewhat upon the char- 
 " acter of the stock ; a stock such as is ordinarily kept up by a 
 ' dry goods jobber, broken, I think at that time would be 
 " worth from 70 to 75 cents on a dollar from cost, on the sup- 
 " position that the stock had been well bought." 
 
 On pages 429 and 430, int'y 11, 12, 13, he testifies, that at 
 this time " there was a great deal of uncertainty felt by busi-
 
 64 
 
 " men in regard to the future ; there had been but little advance 
 " in wollens, Yankee notions and dress goods, and I do not 
 " think it was generally supposed that the advance in do- 
 " mestics would be maintained. There had been a great many 
 " failures in New York, some of the most prominent houses. 
 " The causes of a general prostration of business, were the 
 " failures of the south to pay debts due to the north and of 
 " northwest to pay debts due to New York. 
 
 On the cross-examination by complainant, page 431, int'y 7 
 he testifies, "that in Sept. 17, 1861, at which time Rushmore, 
 " Cane & Co. sold their stock of merchandise in New York, he 
 " did not consider said stock worth (as the question implied) 
 " 90 cents on the dollar," and then adds, " AVC offered our stock 
 u in February, 1864, at 90 cents on a dollar, but failed to find a 
 " purchaser at that rate. We sold our stock of Yankee notions 
 " at 70 cents on a dollar." In answer to the 10 cross int'y, he 
 says, " that the bulk of our stock was staple goods and we had 
 " a small stock of unseasonable fancy goods." 
 
 Henry S. Hart, also an old New York merchant, on page 
 433, int'y 4, testifies, " that the comparative value of foreign 
 " goods in the New York market in January, 1862, as compared 
 " with their value from July to November, 1861, was essentially 
 " the same. There had been a slight advance in a few articles 
 " and a decline in others ;" on page 434, int'y 5, 6, 7 and 9, he 
 says, " that he was acquainted with the financial condition of 
 " wholesale merchants in New York and the northwest during 
 "the year 1861, and up to the 21st January, 1862, and that 
 " the causes of such embarrassment and imcertainty as to the 
 " future, was the failure of their customers in the south and 
 " west, which caused quite a number of failures." 
 
 Lorenzo G. Woodhouse, on pages 436, 437, 438-9 and int'y 
 3, 4, 5, 8, 11 testifies, " that the value of a general job- 
 
 " bing stock of dry goods and Yankee notions on s the 21st of 
 " January, 1862, would be worth in New York about 75 cents 
 " on the dollar. If it was a broken stock, one-sixth of Yankee 
 " notions, one-fourth wollen goods, one-sixth foreign goods 
 " and the balance in domestic goods, one-fourth of which com- 
 " posed of seasonable goods, it would not be worth over 70 
 " cents on the dollar. My judgment is based upon my knowl- 
 " edge of goods and from sales of such stocks in this market. 
 " I was acquainted with the general feeling of merchants in
 
 65 
 
 " New. York during the fall and winter of 1861-2 in regard to 
 " business and its future prospects. They were very des- 
 " pondeut, and the prospect was very gloomy to all business 
 
 Thomas JSinier, on page 532, int. 14, testifies, "that the 
 " stock of goods of Cooley, Farwell & Co., on the 21st of 
 " January, 1862, was worth from 70 to 80 cents a dollar, but 
 " thinks not over 75 cents." 
 
 On page 536, int. 26, 27, he says, "My assignee sold my 
 " stock of dry goods on the 30th of January, 1862, to R. M. 
 " Whipple, at 40 cents on the original cost of the goods. It 
 " was a general stock of dry goods. Before the sale, the stock 
 " had been advertised extensively in the papers for sale (28. 
 " Every effort was made to sell the stock, and the highest price 
 " in cash was obtained for the same." 
 
 On page 543, int 33, he says, " when a whole stock is sold 
 " at a time, like that of C., F. & Co.'s, it is usually sold at a 
 " much less price than when a purchaser is permitted to select 
 " therefrom." 
 
 On page 544, int. 34, he testifies, "that from the close of 
 " the fall purchases in 1861, up to the ensuing spring, there 
 " was a depreciation of from 20 to 30 per cent, on many kinds 
 " of goods. The cause of the depreciation (int. 35) was from 
 " a general want of confidence in the prices of goods at that 
 time. I was among merchants at that time a good deal (int. 
 " 36) and found among them a general impression that the 
 " prices would not be maintained." 
 
 On page 547, in answer to the 51st cross-int'y by complain- 
 ant, he says, " to the New York cost of goods must be added 
 " freight, exchange, cartage and insurance, to ascertain the 
 " cost." 
 
 On page 563, int. 7, John K. Harmon testifies, " that it was 
 " our habit (meaning the habit of himself as the clerk whose 
 "duty it was to mark the goods for sale,) and rule to always 
 " mark them, (the goods) at least 5 per cent, above the New 
 " York cost, with the exception of a few staples." 
 
 On page 566, in answer to cross-int. 21, he says, " all dam- 
 " aged goods were invoiced at cost." 
 
 On page 563, int. 8, he says, " the said stock of goods in- 
 " voiced on the Oth of Januaiy, 1862, were invoiced at the 
 " marked prices." 
 
 9
 
 66 
 
 On page 564, int. 14, he says, "the difference between the 
 " value of the said stock of goods so invoiced on the 9th of 
 "January, 1862, and a. fresh, seasonable stock of goods of new 
 " styles and patterns, would be from 25 to 30 per cent." 
 
 Roger J. Brass, on page 550, int. 10, testifies, " that the said 
 "stock of C., F. & Co., on the 21st of January, 1862, was 
 " worth from 75 to 80 cents on the dollar. When 1 say cost 
 " I mean the original cost of the goods, or what it cost the 
 " house to buy it." (Int. 12.) 
 
 On page 552, int. 18, he says, " as near as I can recollect, 
 " there was not much change in the market (as to the value of 
 "goods) from the 1st of January until towards the middle or 
 " latter part of February, but after that time there was a de - 
 " cline of about 15 or 20 per cent, in certain kinds of goods, 
 " and the market continued unsettled until in the course of the 
 " summer, when there was some advance." 
 
 " On page 544, int. 23, he says, " the difference of value 
 " between a fresh and seasonable stock of goods of new styles 
 " and the said stock of C., F. & Co., would be about 25 per 
 " cent." 
 
 On page 536, in answer to the cross-in t'ys 8-9-10, by com- 
 plainant, he says, " that shortly before the date of said inven- 
 " tory, standard sheetings advanced, but he could not say hoAV 
 "much; and there was some advance in other kinds of do- 
 " mestic goods, but not very large, which was partially lost in 
 " the spring ; outside of certain domestic cotton goods and 
 " prints, there had not been any material advance from what 
 " they were the fall previous." 
 
 R. M. Whipple, on.page 646, int. 6, testifies " that the said 
 " stock of goods of C., F. & Co., on the 21st of January, 1862, 
 " was not worth to exceed 75 cents on the dollar on the orig- 
 " inal cost. The feeling of Chicago merchants at this time, as 
 " to the future prospects of business, were very much de- 
 pressed." (See int. 11.) 
 
 Thomas B. Carter, on page 539, cross 14, in answer to 
 the question, "How much less are broken packages worth 
 to jobbers, than original packages ?" replies, " If pieces and 
 " dozens are not cut or broken, the stock would be worth from 
 " 5 to 15 per cent, less, but where dozens or pieces are broken 
 " or cut, the stock would be -worth from 25 to 30 per cent. 
 " less."
 
 67 
 
 In answer to the 18th cross-int., ho says, " that from 75 to 
 *' 90 per cent, of a jobber's stock consists of broken packages." 
 
 On page 543, int. 32, he says, " that said firm of C., F. & 
 Co., cut pieces and broke packages that came by the dozen." 
 And in answer to the 33d int., he says, " A whole stock, like 
 C., F. & Co.'s, when sold en mass, usually sells at a much lower 
 price." 
 
 In answer to the 34th int., he says, "that the depreciation 
 *' of goods, after the close of fall purchases in 1861, and in the 
 " spring following, was from 20 to 30 per cent, on many kinds 
 "of goods. (35 int.) The cause of such depreciation was 
 " from a general want of confidence in the prices of goods at 
 " that time, and that the general impression among business 
 " men at that time, was that the prices would not be main- 
 tained." (Ans. to 36 int.) 
 
 In answer to the 37th int., he says, "the breaking of pack- 
 " ages, the selection of the choicest styles from the same, 
 " leaves the balance of the stock of much less value than the 
 " original stock." 
 
 John K. Harmon testifies, (seepages 563-4, int. 11, 12, 13, 
 14,) " that styles and patterns of fancy dress goods, including 
 " prints, change from season to season, and that there was 
 " quite a large amount of unseasonable and old styles in the 
 " stock of C., F. & Co., on the 2 1st of January, 1862, and that 
 " he was thoroughly acquainted with said stock transferred to 
 " Cooley and Farwell, and that the 'difference in value between 
 " the said stock so transferred to-C. & F., and a fresh, season- 
 " able stock of new styles and patterns, suited to the Chicago 
 " market at that time, would be from 25 to 30 per cent." 
 
 On the cross-examination, (page 564,) he says : " I have 
 " acted as salesman for the last ten years, and had the super- 
 " vision of the stock, and that he has had some experience as 
 " a buyer, in Chicago, to a limited extent. The damaged 
 " goods were all invoiced at cost." 
 
 Thomas L. Rushmore testifies, (see page 429, int'y 9) that 
 at the time last mentioned, " I should think unseasonable fancy 
 " goods would be at from 35 to 45 per cent, discount from 
 . " cost, and unseasonable staple goods from 25 to 30 per cent. 
 " discount from cost." (Int'y 1 1). There was a great deal 
 " of uncertainty (at this time) felt by business men in regard 
 " to the future."
 
 68 
 
 H. S. Hart testifies (see page 434-5, int'y 5, 6, 7, 8,) that 
 during the year 1861, and up to January 21, 1862, the financial 
 condition of wholesale merchants in New York and the north- 
 west, " was embara'ssrnent and uncertainty as to the future." 
 There was quite a number of failures. In answer to the 2d 
 cross int'y by complainant, he says, " that the stock of Gas- 
 " herie & Davis, " sold at 65 cents, in September, 1861. It was 
 " a general stock (that is a wholesale stock)." 
 
 Lorenzo G. Woodhouse testifies (see page 437 and 439, int'y 
 7, 8, 9, 11), that the comparative value of a broken stock of 
 goods on hand, at the time above named, and a fresh stock 
 purchased expressly for the season next ensuing, would be 
 " about 30 per cent. ; one reason (for this) would be, you would 
 " have to carry a large stock of unseasonable goods for six 
 " months, and out of style ; and there are goods in a stock of 
 " that kind, which carried from year to year, if sold, would 
 " have to be disposed of at a sacrifice. The longer they are 
 " carried, of course, the greater the loss on them. I base my 
 "judgment on my knowledge of goods, and also from sales of 
 " such stocks in this (New York) market. The general feeling 
 " in New York during the fall and winter of 1861-2 in regard 
 " to business and its future prospects, were very despondent, 
 " and the prospect was very gloomy to all business men." 
 
 From this testimony, we can come to but one conclusion, 
 to-wit, that at the time of the date of the said agreement, to- 
 wit, the " 21st day of January, 1862," goods, as a whole, like 
 those kept by the said firm, were not " steadily advancing," 
 nor were they considered at that time " the most desirable por- 
 tion of the assets of the said firm." Not only must the broken 
 condition of said stock of goods be taken into account, and also 
 the old styles and old patterns, but we must, as far as possible, 
 in order to form a correct judgment, place ourselves back to 
 that time, and in the place of a wholesale merchant with a 
 stock on hand and with an immense debt to pay, and then con- 
 template the future from the then condition of our country a 
 Avar raging in our midst, that had no parallel in the ages past. 
 Our army and navy, though made up of the best and the 
 bravest men in the world, had met with little else but defeat. 
 Manassas Junction, Fort Donelson, and Fort Henry in the 
 possession of a strong and a fortified enemy, and our noble 
 army of the Potomac refusing to "move upon the enemy's
 
 09 
 
 works." Our whole country and people, and their representa- 
 tives in Congress, all disheartened and muttering in secret 
 their discontent; and at the same time, the monarch's of the 
 old world plotting and planning the best Avay to secure a divi- 
 sion^ of our national union, were counting the days when 
 they, one and all, would recognize the independence of those 
 in rebellion to our government. At such a time as this, with 
 such prospects in view, is it strange that the commercial 
 interests of our whole country should experience such a des- 
 pondency as said witnesses have testified to ? Is it strange, 
 that merchants should feel that there was no certainty for 
 business in the future. Is it surprising that the said com- 
 plainant and the defendants, Cooley and Farwell, one and all, 
 desired to close up their business, as Mr. Dunham testifies they 
 did, from his said conversation with complainant ? What is 
 most surprising of all is, that any one at that time had the 
 nerve to proceed on in business ! Cooley and Farwell had the 
 nerve, it is true, and why ? Simply because they had over 
 $400,000 of said firm's indebtedness to pay. It rested at that 
 time wholly upon them. Wadsworth could not render any 
 assistance. It must be paid or they would surely become hope- 
 lessly bankrupt. To do^ this, they were obliged to resort to 
 desperate means and undertake great responsibilities. To sit 
 still, was certain ruin. Wadsworth had no money and but 
 little credit. The whole responsibility was upon Cooley and 
 Farwell; and they had but this alternative. They were forced 
 to resolve to take the responsibility and to make the effort. For 
 the first six months goods declined, and they stood upon the 
 balance not knowing which way it would turn putting forth 
 all their energies and bringing to their assistance the help of 
 all their personal friends. The scale, after from six to ten 
 months, turns fortunately in^their favor, and they succeeded in 
 paying this vast indebtedness, after having been obliged to 
 borrow or loan over $200,000. From that time until now they 
 have been successful, and they have doubtless made money 
 some say they have become rich. If they have I am glad of it, 
 for they richly deserve such success ; and because they have, 
 under these circumstances, succeeded, surmounting all obstacles, 
 taking all responsibility from Wadsworth, he now comes into 
 this Court and asks it to give to him their hard earned gains, 
 without labor or compensation on his part. His baby cry of 
 ignorance and trust, merits only the severest reprimand.
 
 70 
 
 But let us examine into the considerations named in the said 
 agreement, and see whether complainant has sustained as great 
 a loss, in comparison with his said partners, as he pretends to 
 have done. 
 
 The goods taken by Cooley & Farwell, under the said agree- 
 ment, on the 21st day of January, 1862, at the invoice price, 
 including the store furniture and fixtures, 
 amounted to $161,041.89 
 
 Mr. Harmon testifies, on page 567, int'y 15, 
 " that the store furniture was included in this 
 amount, and that the same amounted to the 
 sum of $3,542.00, and that its cash value at 
 that time was not more than $2,000.00. Now, 
 deduct the invoice price of the furniture from 
 the invoice price of the goods charged to 
 Cooley & Farwell, to wit: 3,542.00 
 
 and we have the true amount of goods, to wit : $157,499.89 
 It has been clearly shown by the evidence that 
 these goods, at that time, in fact, were not 
 worth more than 75 per cent, of the said in- 
 voice price, which would produce a discount of $39,374.96 
 Deduct this amount of discount from the whole 
 
 amount of goods, and we have the true value 
 
 of the said goods, to wit, $118,124.92 
 
 Add to this the true value of the furniture, to wit, - 2,000.00 
 
 and we have the true value of said invoice, to wit, $120,124.92 
 
 Take from the whole invoice, to wit, $161,041.89 
 
 the true value of the same, to wit, 120,124.92 
 
 and we find the loss to be on the 
 
 said invoice to Cooley & Farwell, viz : $40,916.97 
 
 Under the said article of copartnership, this 
 
 amount of loss would have been borne by the 
 
 several partners, as follows: One-half by 
 
 Cooley, or, $20,458,49 
 
 One-fourth by Farwell, or, 10,229,24 
 
 One-fourth by Wadsworth, or, 10,229.24 
 
 From these computations, under the evidence, it is plain to see 
 
 that Cooley & Farwell lost on the said goods the full sum of 
 
 $40,916.97, and Wadsworth has been relieved from sustaining
 
 n 
 
 any portion of the same, though his share of it, under the said 
 original copartnership agreements, was one-fourth of the whole 
 amount or the sum of $10,229.24. To offset this great loss 
 which Cooley & Farwell, under the said agreement of the 21st 
 of January, 1863, had, or were liable to sustain alone, and for 
 the further consideration of the great undertaking of Cooley 
 & Farwell to pay all the debts of Cooley, Farwell & Co., then 
 amounting to about $430,000, and all the expenses incident 
 thereto, with the balance of said assets, and for the purpose of 
 equalizing the supposed or estimated losses incident to the said 
 remaining assets, and to equalize the rights of the partners by 
 reason of the failure of Wadsworth to pay into the capital 
 stock of the said firm of Cooley, Farwell & Co., the amount 
 he had agreed to do, with the said losses of Cooley & Farwell 
 and to recompense them in part for their services, which they 
 had rendered under the said copartnership agreement, it was 
 further provided by the partners in their said agreement, that 
 the said " remaining assets" after the payment of the said 
 debts and expenses above named, should be divided between 
 the partners, " according to the pro rata amount due to each" 
 That is, in the ratio of the nominal balances of each partner in 
 the said " remaining assets." The books of account at that 
 time made the nominal amount of said " remaining assets" to 
 be $280,299.75, and the nominal pro rata share of the several 
 partners therein to be as follows : 
 
 Cooley's pro rata share, due him, $128,497.14 
 
 Farwell's " " " " " 48,571.46 
 
 Wadsworth's " " " " 103,231.15 
 
 Mr. Spink, in his examination of the said books, found some 
 errors, principally, however, in the matter of casting interest, 
 the balance of which errors he found to be largely against 
 Cooley & Farwell, and in favor of Wadsworth. In his cross- 
 examination, (pages 74-5, c>ross-int. 31), he corrects these er- 
 rors, and which corrections change the said balances as follows : 
 
 Cooley's pro rata share, due him, $120,168.25 
 
 In this he omitted to add the Wabash Avenue 
 building account, which Mr. Cooley had paid, 
 and which amounted to 7,943.06 
 
 making his true pro rata share therein due 
 him, to be {Carried forward.] $128,111.31
 
 72 
 
 Brought, forward. $128,1 1 1.31 
 
 Farwell's pro rata share due him, - 50,611.63 
 
 Wadsworth's " " " " 100,722.44 
 
 Add these several balances together, and we find 
 the whole amount of the said "remaining assets" 
 to wit, the sum of $279,445.38 
 
 Mr. Leiter, on page 590, cross int., says the said 
 "remaining assets" amounted to $278,467.29 
 
 making the difference between their calculations 
 
 to be 978.09 
 
 Of these " remaining assets" to wit, $279,445.38, 
 
 there has been charged to the account of profit 
 
 and loss, as follows : 
 
 In the firm of Cooley, Farwell & Co., about $100,000.00 
 
 in the firm of Cooley, Wadsworth & Co., about 49,015,29 
 
 making the total amount charged to loss, $149,015.29 
 
 (See Mr. Leiter's testimony, pj'.ge 582, int. 59.) 
 Now let it be borne in mind that under the said agreement of 
 the 21st of January, 1863, Cooley & Farwell bore their pro 
 rata share of this loss with Wadsworth, in the ratio of their 
 said several balances or their said interest in the said " remain- 
 ing assets," to wit : 
 
 Cooley in the ratio of $128,111.31 to $279,445.38. 
 Farwell in the ratio of $50,611.63 to $279,445.38. 
 Wadsworth in the ratio of $100,722.44 to $279,445,38. 
 From this the said several partners are found to sustain a loss, 
 as their respective shares of the said loss, of $149,015.29, under 
 the said agreement of the 21st of January, 1862, as follows : 
 Cooley's share of the same is, $68,315.84 
 
 Add to this his share of the 
 
 said loss on the said goods at 
 
 invoice price, to wit, 20,458.49 
 
 and we find he sustains a loss of $88,774,33 
 
 Farwell's share of the same is, $26,988.33 
 and his share on said goods is, 20,458.48 
 
 making his total loss to be, $47,446.81 
 
 Wadsworth's share of the same is, $53,710,62 
 which constitutes his total loss. 
 
 Now, let us compare this result under the said agreement, 
 with the pro rata amount of said losses under the said origi-
 
 nal articles of copartnership that is, one-half of the losses to 
 Cooley, and one-quarter to Farwell and Wadsworth, each. 
 
 The whole amount of losses, it will be remembered, is as 
 follows : 
 
 On the goods at invoice price, $40,916.97 
 
 The amount of loss in Cooley, Wadsworth &-Co., 49,015.29 
 
 Cooley, Farwell & Co., - 100,000.00 
 
 Making a total loss, as aforesaid, of - $189,932.26 
 Cooley's share, under the original copartnership 
 
 articles, being half, would be 894,966.13 
 
 His loss, under the last agreement, being - 88,774.33 
 
 Diiference, - $6,191.80 
 FarwelFs share, under the articles of copartner- 
 ship, being one-quarter of the whole, would be $47,483.07 
 His loss, under the last agreement, being - 47,447.31 
 
 Making a difference of only i 
 
 Wadsworth's share, under the articles of copart- 
 nership, being one-quarter of the whole amount 
 of loss, would be - - $47,447.31 
 
 His loss, under the said last agreement, being the 
 
 aforesaid sum of - - 53,710.62 
 
 The difference against him is only - - $6,263.31 
 
 In justice to Mr. Farwell, the fact in evidence that Mr. 
 Cooley took to himself about three-quarters of the said goods 
 at invoice price, and Farwell only about one-quarter of the 
 same, ought to be borne in mind. This would not affect Wads- 
 worth's private share of the losses as to them both combined, as 
 against him, but it would change to the advantage of Farwell 
 the private share of the said loss, as between Cooley and Far- 
 well. 
 
 Can this be considered a hardship on the part of Wads- 
 worth ? Certainly not ! But suppose it was, or that his con- 
 sideration therefor was not an exact proportion under their old 
 agreement, has he not voluntarily received, under his own 
 agreement, and does he not now enjoy its benefits ? This is 
 admitted and proved. Have not Cooley and Farwell faithfully
 
 74 
 
 - ^^ 
 
 A'" ? 
 
 devoted their time and talents, under the said agreement, to 
 the collection and converting a sufficient amount of said assets 
 into money to pay the said indebtedness of about $430,000, 
 and released Wadsworth from all labor and responsibility 
 thereto 'i And has not Wadsworth had the advantage of this 
 consideration ? This must be conceded for it has been proved 
 and never denied by the complainant ! And have not Cooley 
 and Farwell, under the said agreement, paid all of the said 
 debts, and without the aid of complainant ? No one denies 
 this. The admissions in the bill, as well as the evidence, show 
 they have done all this, and more than this ; for the evidence 
 shows that since the payment of the said debts, (Wadsworth, 
 upon notice, refused to divide the said " remaining debts," un- 
 der the said agreement) they have converted from seventy-five 
 to ninety thousand dollars more of said "remaining assets". 
 into money. And they should be allowed consideration for 
 their labors in this regard. Under the said agreement, and by 
 the rules of equity, they are entitled to a just and adequate 
 consideration ; and the evidence shows that they have not re- 
 ceived a farthing therefor. 
 
 Before asking this Court to set aside and rescind the said 
 agreement, Wadsworth was bound to return or make good 
 these considerations he so received under the same. Has he 
 done so, or offered to do so, or even expressed a willingness to 
 do so ? No ! He takes all the said considerations and appro- 
 priates them all to his private use, and then, after having en- 
 joyed them for one year and a half, and without even offering 
 to make Cooley and Farwell or the assets of the firm good, by 
 tendering them back, or in any other wise to replace all the 
 parties so far as possible in their original position and rights ; 
 and while holding on to them as it is his right so to do only un- 
 der the said agreement, he comes into this Court with his bill of 
 complaint, by which he seeks to avoid the very contract that 
 gave to him the benefits of said considerations, and asks this 
 Court to pronounce it void and to set it aside ; while, at the 
 same time, he himself refuses to relinquish one iota that he 
 has received under it. He retains the said $10,000, without 
 offering to return the same. He retains the $3,500 which he 
 afterwards received. He took from Cooley and Farwell his 
 release from the duty of aiding in the collection of the said 
 assets, and the responsibility of paying said debts, and placed
 
 75 
 
 the same wholly upon Cooley and Fanvell, and all under the 
 said agreement. He substituted the said agreement in the 
 place of the said original copartnership agreements, by which 
 the said " remaining assets " were to be divided between the 
 said partners " according to the private amount due to each ;" 
 and, in the most complacent manner, he has appropriated to 
 himself all that he was to have and to enjoy under the said 
 agreement ; and then he comes into this Court with all the 
 said considerations, or the avails of them, in his pocket, and 
 without offering in any manner to make Cooley and Far well 
 good in the premises, asks that this same agreement by 
 which he holds them may be set aside, and he admitted to his 
 original rights under the said original copartnership agree- 
 ments, with the brazen lie upon his conscience that he has 
 " faithfully fulfilled," on his part, all his promises and under- 
 takings mentioned in the said original copartnership agree- 
 ments. Is this equity ? Has it good common sense for its 
 foundation ? Has it common honesty to support it ? Such is 
 the selfish, grasping disposition of the complainant ! Shall we 
 say that this is a fair exemplification of the man ? We will 
 not pronounce upon him ; but we can say, that such is the re- 
 flection which the evidence in this case and his own bill ol com- 
 plaint reflects upon his chararter. 
 
 But it may be replied, that the testimony above recited, as 
 to the value of said goods, and upon which our remarks have in 
 part been based, has been changed by the testimony of Aiken 
 and Harmon. We will refer to it and see how it is. On page 
 699, int'y 7, Mr. Aiken testifies, that " I should consider a 
 general stock of merchandise, at that time, worth cost, if a fair 
 proportion of staples were in the stock." On the cross-exami- 
 nation, on the same page, int'y 1 , he testifies, thatj " as to 
 merchandise for future trade in January, 1862, there was rather 
 a timid feeling." On page 700, int'y 3, he says, " my acquaint- 
 ance with the stock of merchandise kept by C., F. & Co., in 
 January, 1862, was not such as to fix the cash value of it. In 
 answer to int'y 4, he says, " I should think that a general stock 
 would be worth its cost, with the usual discount from goods 
 bought on time." In reply to int'y 6, he says, " that as between 
 the comparative value of goods in January, 1862, and July fol- 
 lowing, my impression is, that there was not much difference." 
 In reply to int'y 7, 8, 9, 10 and 11, on page 701, he says, " (his
 
 firm) Harmon, Aiken & Gale, kept for sale staple and fancy 
 dry goods and notions, and that they sold the same to their 
 successors, Harmon, Gale & Co., at New York cost, less a dis- 
 count of 12% per cent., on a credit of eight months." In 
 answer to int'y 18, 19 and 20, pages 702-3, he testifies, that 
 " their said stock (sold by them) was purchased in the spring 
 of 1861 and previously. That goods in the fall of 1861 were 
 higher than in the spring, from ten to twenty per cent., and 
 that from the fall of 1861 to the time of their said sale there 
 was still another advance, I should say, of ten per cent." Let 
 us look at this testimony a little more closely. 
 
 1st. Mr. Aiken says that general stocks of goods in Jan'y, 
 1862, were worth cost, with the usual discounts off, from goods 
 bought on 8 months time. 
 
 2d. That he bought these goods in the spring of 1861, and 
 that from that time to fall stocks of goods advanced from ten 
 to twenty per cent, and that from fall to the time his firm sold 
 the stock, they advanced again ten per cent. The difference 
 between cash and time prices is at least five per cent. Now, 
 if we add this to the said two advances, we have a dif- 
 ference of thirty per cent, and add to this thirty per cent, the 
 actual discount which this witness says his firm sold his stock 
 for, to- wit, 12 per cent, and we have really and in fact a dis- 
 count upon his said stock of forty-two and a half per cent In 
 answer to the int'y 36, on page 708, Mr. Aiken testifies further, 
 that his firm's said stock was worth to the said succeeding firm 
 from 10 to 15 per cent more than to any one else. 
 
 Mr. Harmon testifies on page 711, int'y 4, that the goods in 
 a certain invoice which complainant furnished him to examine 
 on the 21st of January, 1862, was worth 95 cents, in a regular 
 way, or on the usual credit of eight months. On page 712, in 
 reply to int'y 4, he says : I never examined the goods at all 
 (that is the goods in the inventory furnished by Wadsworth 
 to him). In reply to int'y 6, he says : On the 21st of Jan'y, 
 1862, I think there was a general distrust of the future in 
 regard to business prospects. In reply to int'y 7, he says : 
 As between a stock of goods selected from the market and a 
 stock that has been sold from and kept along for years, there 
 is a difference in value from 10 to 15 per cent. In reply to 
 int'y 11, page 813, he says, that he does not think he would 
 be willing to give 95 cents in the regular way, (that is on eight
 
 77 
 
 months time) for a stock of goods. In reply to int'y 15, page 
 714, he says, that the success and defeat and delay of the loyal 
 arms of the government at that time controlled the confidence 
 of business in the reliability of the (then) present and future 
 transactions and influenced the price of merchandise to depress 
 the price. Int'y 16. Prior to that time, I think there was a 
 general feeling of depression. I do not remember of any suc- 
 cess our armies had achieved at that time. 
 
 It will be seen that Mr. Aiken, after all, does not differ very 
 much in his judgment of the value of old stocks of goods at 
 that time from the mass of testimony above quoted. And that 
 Mr. Harmon's judgment would not under all the circum- 
 stances of his testimony, after all, make the value of a stock of 
 goods like that purchased by Cooley & Farwell at that tune 
 worth far from 80 per cent, of the cost or invoice price. He 
 says that a general stock would be worth, at regular rates, 95 
 cents, which would make it worth in cash 90 cents; but he 
 says, that between a fresh stock, like that of the inventory he 
 examined, and an old stock, there would be a difference in value 
 of from 10 to 15 per cent.; thus, in fact, reducing his cash figures 
 or value for a broken stock to 78|- per cent, of the invoice price 
 named in the inventory he examined. But if we had taken the 
 testimony of these two witnesses as they gave it in on the 
 direct examination without the qualifications which they 
 respectively give on the cross-examination, it amounts to only 
 this, that complainant has introduced two witnesses to over- 
 throw the united testimony of eight witnesses, to-wit : Thos. 
 B. Carter, R. J. Bross, J. K. Harmon, Rushmore, Hart, Wood- 
 house, Gale, and Whipple. 
 
 The evidence, or the weight of testimony, shows that mer- 
 chandise did not advance in value until some six months after 
 the date of said sale. But suppose such goods had began to 
 advance immediately after the date of said invoice ; and sup- 
 pose they were the most desirable portion of the assets of the 
 said firm, was not the said complainant bound to know these 
 two facts, if they were then knowable ? And is he not to be 
 considered as having this knowledge, or all requisite know- 
 ledge, when he disposes of his interest therein ? If he did 
 not, and if he is compus mentis and makes a sale of his inter- 
 est therein for a good and valuable consideration, can he be 
 relieved from his contract for that reason ? By no means. The
 
 law holds him to his contract, if the consideration is a valua- 
 ble one, and the means of information is open to him, though 
 he neglects to inform himself. Upon this point we shall pre- 
 sent, if necessary, authorities in another part of this argument. 
 NINTH ALLEGATION. 
 
 On page 17, complainant insists, "that his said partners, in 
 " dealing with said copartnership business and property, and 
 " with his interests therein, have always occupied a fiduciary 
 "relation to him, with all the liabilities of trustees." 
 
 No testimony has been produced to sustain this allegation, 
 and the defendants deny it. 
 
 Prior to the agreement of the 21st day of January, 1862, it 
 was not true, in any sense, except that in which all partners 
 are so by virtue of being partners. Cooley & Far well, up to 
 that time, did not hold the property of the firm any more in 
 trust for him than he did for them. 
 
 Webster says, " a 'Fiduciary' is one who depends on faith 
 for salvation without works." In this sense, the complainant 
 may have been a "fiduciary" ; that is, he depended upon his 
 faith in Cooley & Farwell's ability to make him rich without 
 any labor, and but little money, on his part. 
 
 After the making of the said agreement, and by virtue of it, 
 Cooley & Farwell then took the position of trustees, and held 
 the assets of the firm to pay its debts, and all the expenses of 
 collecting moneys to pay said debts with ; and then they were 
 to surrender such trust in a manner set forth in said agreement, 
 and each partner was to take his share of interest in the " re- 
 maining assets" into his own hands and care for them at his 
 own expense. 
 
 TENTH ALLEGATION. 
 
 On page 17, complainant states, " that on or about the 21st 
 "day of January, 1862, Cooley & Farwell stated to him that 
 "his account was largely over-drawn ON THE BOOKS OF SAID 
 " COPARTNERSHIP, and that such over-drafts had largely em- 
 " harassed the said firm, (of C., F. & Co.),*that they had great 
 " difficulty in paying the debts, and that his private account 
 " was relatively so much larger than theirs ; that he (compl't), 
 " should do what he could to make amends, and then proposed 
 " for these considerations, he should permit the said merchan- 
 " dise, amounting to $161,041.89, (at invoice price,) to be 
 " charged to their private account at said invoice price, and
 
 " that complainant should transfer to them all his interest 
 " therein, and all profits made or to be made on sales from the 
 " 9th day of January to the 1st day of February, 1862, (and 
 " that in further consideration for such transfer,) complainant 
 " was to receive the note of said firm for $10,000, to be 
 " charged to his account ; and that nothing further should be 
 " drawn from the assets of the said firm until all the copartner- 
 " ship debts were fully paid, after which the remaining assets 
 " should be divided among the partners, pro rata, according 
 " to the amounts due to each ; that all expenses attending the* 
 " closing of said business to be paid out of said assets. * * 
 On page 18, he further states, " that the books of said Cooley, 
 " Farwell & Co., were at that time kept in such a manner as 
 " to give color to the representations of Cooley & Farwell ; 
 " and that he thereupon assented to their proposal, and was in- 
 " duced to sign a writing containing the substance of said pro- 
 posal, dated 21st January, 1862." (See page 642.) On page 
 19, he further states, "that he received the notes of the said 
 "firm for $10,000, as stated in said writing ; that the same 
 " was charged to his private account on the books of said firm, 
 " and that the said goods were charged to the private account 
 " of Cooley & Farwell ; that he kneAV nothing as to the relation 
 " of his private account to that of his partners, except as they 
 " informed him." (How did he know that the books gave col- 
 or to said statements, if their said statements were his only 
 information ?) We reply to these allegations, that 
 
 The defendants admit the making of the said agreement be- 
 tween the complainant and Cooley & Farwell ; but they deny 
 that Cooley & Farwell, or either of them, made any such state- 
 ment, and insist that he examined for himself the said books of 
 account, and the private and stock accounts of himself and 
 partners, and this much he admits in his bill, as we have seen, 
 and that he also examined into the general condition of the said 
 firm's business ; that he had every facility for so doing, and 
 that in full view of all the facts, and of the several accounts of 
 the partners, ha made the said agreement with Cooley & Far- 
 well. They also admit that the said goods were charged to 
 the private account of Cooley & Fanvell ; and that complain- 
 ant received from the said firm the sum of $10,000, which was 
 charged to his private account, and that Cooley & Farwell 
 took into their possession the balance of the said assets for the
 
 80 
 
 sole purpose of converting a sufficient amount thereof into 
 money, to pay the said debts and expenses, and that so soon 
 as they had paid said debts, they notified complainant of the 
 fact, and that they were ready to divide the balance of the said 
 assets, under the said agreement ; and that the complainant 
 thereupon neglected to divide the said remaining assets, on 
 frivolous excuses, and finally wholly refused so to divide them, 
 and that they still remain undivided ; that since then Cooley & 
 Farwell have been ready, and willing, and anxious, to so divide 
 them, and are now ready and Avilling so to do, and gave him 
 notice to that effect. The defendants also reply, that a general 
 accounting was at that time had by the said partners, and a 
 settlement made between the said partners of all matters per- 
 taining to the business, and their respective relations to the said 
 firms ; and that, when said accounting was had, to wit, on the 
 day said agreement was made, it was mutually agreed that in- 
 terest should be cast upon their private accounts, and upon all 
 deficiency to their capital stock ; and that at the time of the 
 formation of the said firm, it was agreed that the merchandise 
 on hand at the close of the second firm of C., W. & Co., 
 should be divided between the partners in the ratio of profits, 
 and that each partner's share should be credited to his stock 
 account in said firm of C., F. & Co. ; and that at the time of 
 the said accounting, the said complainant received a statement 
 of his account, containing the items of the said interest, and 
 his share of such division of merchandise. 
 
 What, then, is the issue on this allegation ? 
 
 1st. Was, or not, complainant's private account relatively 
 overdrawn " on the books " of the said firm ? 
 
 2. Had, or not, said firm (during its existence) great diffi- 
 culty in paying its debts ? 
 
 3d. Did, or not, the said Cooley & Farwell make false rep- 
 resentations to him, and thereby induce complainant to make 
 said agreement with them ? 
 
 For the evidence to sustain the defendants in their position 
 in the said first issue, we refer to the collation of the evidence 
 commencing on ante page 53 to 61 inclusive. 
 
 To the second issue, to wit : " Had, or not, said firm of C.> 
 F. & Co., (during its existence) great difficulty in paying its 
 debts ?" We say it had and that the evidence sustains us.
 
 81 
 
 The complain :uit has not offered any evidence to prove his 
 position. 
 
 Mr. Spink testifies, on page 116, cross 99, "that the average 
 " balance of money loaned by Cooley and Farwell to pay the 
 "debts of the said tivm of C., F. & Co., from the first day of 
 "April to the 1st day of September, 1862, was $109,000; and 
 " that the average bal .nice so loaned for such purpose, from the 
 " 1st of March, 1862, to the 1st of January, 1863, was $68,500 ; 
 " and that the bankers' rate of interest for money loaned was 
 "10 per cent, during the periods named, and at which rates 
 " very large sums of money were loaned in this city." 
 
 Mr. Leiter testifies, on page 583, int. 63, "that the firm of 
 " 0., F. &. Co., made loans to carry on its business. The 
 " amount borrowed by both firms of C., W. & Co., and C., F. 
 " & Co., in 1857, '58, '59, '60 and '61, Avas $824,676.53, and 
 " said firms paid interest at the rate of 7 per cent. The amount 
 " borrowed by C.,W. & Co., No. 2, was $295,589 ; the amount 
 "borrowed by C., F. & Co., in 1857, was $42,000; in 1858, 
 "$256,400; .in 1859, $26,500; in I860, $67,000, and in 1861, 
 " $137,187.53." 
 
 On page 591, cross 43., he further testifies " that no part of 
 " the money borrowed by the firm of C., "W. & Co., was bor- 
 " rowed by the firm of C., F. & Co. 
 
 On page 593, int. 71, he says, " If C., F. & Co. had relied 
 " upon the assets of said firm to meet its liabilities, it would 
 " have necessitated borrowing money at least." 
 
 C. B. Farwell testifies, on page 638, int. 4, 5, 6, 9 and 10, 
 "that John V. Farwell came to him in the fall of 1857, to get 
 " him to endorse the paper for the firm of C., F. & Co., and 
 " said ' that instead of complainant's furnishing the firm the 
 " facilities for its business, the firm was obliged to provide for 
 " -S25,000 of paper which the firm had endorsed for complain- 
 " ant.' (Witness then states) " that he immediately commenced 
 " endorsing for the said firm, and that he endorsed its paper to 
 "the amount of about $100,000." 
 
 On page 640, int. 9, he further states, " that during the finan- 
 " cial crisis of 1857-8, the rate of exchange was about 10 per 
 "cent., frequently over and under this amount, and C., F. & 
 " Co. sent circulars to their customers to send their grain to 
 " the firm and it would allow them the market price on its ar- 
 " rival, or hold it until ordered sold, or would ship it to New 
 11
 
 82 
 
 " York and allow them what it sold for there, and that Mr. 
 "Tyrrell, of Burley & Tyrrell, said that the course C., F. <fc 
 " Co. pursued saved them from failure ; ' and John V. Farwell 
 " told him (witness) that this policy saved the firm from sus- 
 " pension." 
 
 The third issue, to wit: Did, or not, Cooley & Farwell make 
 false statements to complainant, to wit : that complainant's ac- 
 count, relatively, was much larger than theirs ? 
 
 The complainant has not offered any direct evidence upon 
 this issue. He assumes, in his bill, that false representations 
 were made to him ; and when he puts his main witness (Mr. 
 Spink) upon the stand, he instructs him, and so does his coun- 
 sel, that said witness, in his figures, is to assume that there was 
 false representations, and said witness, under such instructions, 
 starts out and proceeds in his direct examination upon the hy- 
 pothesis that the books contained improper entries from the 
 commencement of the firm of C., W. & Co., No. 1, to the 
 close of the firm of C., F. & Co. In fact, all the figures and 
 results produced by said witness, in his direct examination, are 
 based upon such assumption, and of course they present only 
 distortion by violating all the agreements of the partners and 
 the evidence of such agreements in the books of account. 
 
 Mr. Spink testifies on page 83, cross 46 b, and cross 47, 
 " that if entries were made on the books not in accordance 
 " Avith agreements, it seems probable to him that the several 
 " partners, having fall access to the books, would have known 
 " it." 
 
 In his computations as submitted in his examination in chief, 
 he says : " I could not and should not have taken account of 
 " agreements simply represented by entries and deducible there- 
 "from, as I was requested to make my computations on the 
 " basis of the articles of copartnership by Mr. Wadsworth 
 " and his attorneys." 
 
 On pages 205 and 206, cross 145, he testifies on the question, 
 " had the articles of copartnership and books of account and 
 the entries therein of the three several firms been submitted as 
 the evidence of all the agreements made between the said part- 
 ners, how would you have divided the merchandise and made 
 up the accounts:'" 
 
 He replies : "I should have divided them (the goods) on the 
 " same basis ; (that is, in the ratio of profits.) I would probably
 
 83 
 
 "' have made some little difference in the transfers, and would 
 " have corrected the errors in the figures of interest. [Those 
 errors, it will be remembered, were made in favor of Wads- 
 *' worth.] There is nothing in the articles of copartnership in 
 " controvention of such a division of goods ; in fact, there is 
 " nothing in them on the subject." 
 
 On page 221, cross 95, he testifies, " that he has not discov- 
 " ered in his examination of the said books of account, any 
 " evidence of deceit, or of intention to deceive in either of the 
 " entries therein or in the manner in which they have been 
 " kept." 
 
 And Wadsworth himself states on page IS of his bill, "that 
 " the books of said Cooley, Farwell & Co., at this time, were 
 " kept in such a manner as to give color to the representations 
 " of Cooley and Farwell that your orator had overdrawn his 
 " account with said firm" 
 
 But how does the complainant and his counsel figure out 
 that complainant's account was not relatively larger than his 
 partners ? 
 
 1st. By treating the $5,000 loaned by Farwell, of the first 
 firm of C., W. & Co., and the interest thereon, as so much 
 money drawn from the assets on his private account, in viola- 
 tion of the agreement of the copartnership. 
 
 Mr. Spink testifies on this point, on page 205 and 142, that 
 " the amount of $5,000 should not be included in considering 
 " the amount of his (Farwell's) drafts, relatively to those of 
 " his partners, because it was a special loan, not to be refunded 
 " by him until certain contingencies had arisen and these had 
 " not arisen." See also int'y 141 and cross 180, page 217. 
 
 On page 179, int'y 88 and 89, Mr. Spink testifies, that Wads- 
 worth was entitled to draw the sum of $10,112.65 more than 
 Farwell, but this he corrects and pronounces it false in fact in 
 his cross-examination, on page 205, int'y 144, he says: "In 
 " neither firm did Wadsworth have the right to draw $10,- 
 " 112.65 more than Farwell ; my answers to the 88 and 89 
 " direct interrogatories were made on the hypothesis of the 
 " question propounded to me." 
 
 2d. By dividing the goods on the basis of capital without 
 any agreement to do so, and in violation of their agreement to 
 divide them in the ratio of profits.
 
 84 
 
 Mr. Spink testifies on page 205, that " take the books with 
 " the articles of copartnership as evidence of the agreement 
 " of the partners upon the division of the goods, and I should 
 " have divided them on the same basis of the books, (that is, in 
 " the ratio of profits). There is nothing in the articles of co- 
 " partnership in controvention of such a division of the goods ; 
 " in fact there is nothing in them upon the subject." On page 
 " 216, int'y 178, he says, that the goods on hand at the close 
 " of each firm could not be considered as so much capital in 
 " the new or succeeding firm without the express agreement 
 " of the partners." On page 219, int'y 184, he testifies, " that 
 " in the absence of any agreement to divide the goods, they 
 " should be converted into money and the money divided." 
 On same page, int'y 185, he says, "that in the absence of an 
 " agreement to divide the goods, the debts having been paid, 
 " they could not be divided in the ratio of capital stock with- 
 " out first reducing them to money, in order that a valuation 
 " should be placed upon them and that he (witness) had no 
 " knowledge of the value of said goods." (See int'y 186.) 
 
 3d. By omitting, in Mr. Spink's examination in chief, to 
 charge and credit interest on shortage and surplus of capital 
 of the several partners to the capital stock of the firm of C., 
 F. & Co., and by throwing out of consideration the time capital 
 of Cooley & Farwell. Mr. Spink testifies on page 82, int'y 
 44, " that he computed no interest in his computations in chief 
 "upon capital, or upon deficiency of capital." On page 114, 
 int'y 95, he testifies, " that 'the effect of computing interest on 
 " shortage and surplusage of capital would be to equalize to 
 " that extent their relations as capitalists in the firm." On 
 page 114, int'y 96, he says, "in cases where the partners fail 
 " to pay in the capital they agree to, it is customary to cast 
 " interest on the several deficits ; thus to that extent the deficits 
 " become equalized." On page 84, intfyj49, he says, " interest 
 " at the rate of 6 per cent, woultf^irfmy opinion compensate 
 " for deficiency of capital stock." On page 68, int'y 24 and 25, 
 " he says, " that I took no account of compensation to Cooley 
 " & Farwell, or either of them, in my computations in chief, for 
 " their time (capital) as against capital. 
 
 4. By causing Mr. Spink in his ex. in chief to ignore the 
 firm of C., F. & Co., and to treat it as the continuance of the 
 firm of C., W. & Co. No. 1.
 
 Sa 
 
 Mr. Spink testifies 011 page 136, int'y 113, that "the effect 
 " of ray computations, however, on the balance of assets of the 
 "three firms, on hand on February 1, 1862, would not be to 
 " change that balance, had I figured the three firms as one 
 " continuing firm. Nor would it change the total balance dm- 
 " each partner February 1, 1862, with the exception of a small 
 " matter of interest, figured on deficit of capital in the 2d firm 
 " of C., W. & Co." [This interest so figured was in favor of 
 complainant.] On page 75, int'y 32, he says, " the cause of 
 " the differences between his computations in chief and the 
 " books, are principally on account of interest being figured on 
 " the books of C., F. & Co. on shortage of capital from $200,- 
 " 000, divided in proportion, half to Cooley, two-fifths to 
 " Wadsworth and one-tenth to Farwell, and by the charge of 
 " interest on the division of the goods, as between the mode of 
 " dividing them on the basis of capital or profits. 
 
 5. By seeking to make it appear that a great wrong was 
 done Wadsworth by reason of the said two building accounts 
 being kept distinct as " Building Accounts" and instead 
 of being charged directly to the private account of those to 
 whom they belonged. 
 
 Mr. Spink testifies on page 107, int'y 77, " that th < 
 " injury done to either of the partners in leaving the " building 
 " accounts " standing on the books, neither was there any im- 
 " propriety in so doing." On page 106, int'y 75, he says, 
 " that these accounts were kept separately for convenience, as 
 " such accounts are generally kept, and that they were paid 
 " with interest." 
 
 6th. By attempting to make it appear that the profit and 
 loss account of C., F. & Co., was much larger than the esti- 
 mate of the losses of this firm were, as presented in said " Ex- 
 hibit A" to Mr. Spink's deposition on page 44 of ev. In this 
 Exhibit, it was estimated to be $100,000, at the time said esti- 
 mate was made, to wit : on the 20th of January, 1862; and 
 that the said division of the goods between the partners in the 
 ratio of profits, and the charge of interest on shortage of cap- 
 ital, which were also contained in said Exhibit A, were not 
 known to said complainant. 
 
 Mr. Leiter testifies, on page 582, int. 59, " that the amount 
 "charged to profit and loss since February 1st, 1862, is $149,- 
 " 015.29."
 
 86 
 
 On page 529, in answer to the 42d cross int. by complainant, 
 he says, "that the said sum of $149,015.29, charged to the 
 " said account of profit and loss, included both C., W. & Co., 
 "No. 2, andC., F. & Co." 
 
 This would leave about the sum of $100,000 to the account 
 of C., F. & Co., as estimated in said "Exhibit A." That said 
 Exhibit was only an estimate, made about the 20th of January, 
 1862, there can be no doubt from the testimony. 
 
 Mr. Spink, who says, on page 220, cross 91, " that from the 
 " charge of $25,000 to Wads worth in said Exhibit for one- 
 " fourth of the losses, it may be inferred that the total loss of 
 the firm of C., F. & Co., No. ], would amount to about 
 " $100,000." 
 
 On page 88, cross 62, he says, " It is evident from the books 
 " and this Exhibit, that the same was made about the 20th of 
 "January, 1862, for the profit and loss account was not made 
 "up until the 31st of January, 1862, nor was the interest on 
 " stock account. The Exhibit charges Wadsworth with $25,000 
 " as a quarter of the losses. From the foregoing, I therefore 
 " conclude that it was an estimate of the affairs of the firm 
 "named, as they Avould probably stand on the 1 st of February, 
 "1862." 
 
 On page 90, cross 66, he says, " that the charge of interest 
 " in the said Exhibit A " seems to be the amount chargeable 
 " to Wadsworth for interest on shortage of capital from the 
 " sum of $80,000, as the amoiint due him on that account to 
 " the firm." 
 
 Mr. Leiter testifies, on page 595, int. 78, " that said Exhibit 
 " -4, (to Spink's deposition) must have been made about the 
 "18th of January, 1862, and it appears to be an estimate of 
 " Mr. Wadsworth's condition in the firm at that time." 
 
 On pages 591-2, int. 64 and 65, Mr. Leiter says " that said 
 "^Exhibit A shows as follows : The credit of $28,842.46 was 
 " derived from one-fourth of the merchandise on hand Feb- 
 "ruary 1st, 1857, and the credit of $10,419.00 was derived from 
 " collections from C., W. & Co., No. 2, and that the charge of 
 " $12,097.02 of interest, was charged to Wadsworth on short- 
 " age of capital." 
 
 From this testimony how is it possible for the complainant 
 to say, in good faith, that he did not know of the division of 
 the merchandise between the partners in the ratio of profits,
 
 87 
 
 and that he did not know of the charge of interest to his ac- 
 count upon deficit of capital from the sum of $80,000 until 
 March, 1863V He has shown by his own testimony, that he 
 knew all about it. What was the object of this statement in 
 said "Exhibit"? The said Exhibit itself answers the ques- 
 tion. It was to show how his account would probably stand 
 under the said agreement of 21st of January, 1861 that is, 
 how it would stand after the stock account and after his inter- 
 est upon his deficiency of capital was made up. And it also 
 shows what the said partners had estimated the losses in the 
 firm of C., F. & Co., to be. These various items are contained 
 in said Exhibit by name, and the said Exhibit is placed in his 
 hands advising him of the amount of interest upon his defi- 
 ciency of capital ; also of the division of goods in the ratio of 
 profits, and of the estimated losses so sustained by said firm. 
 Yet this complainant, having received this statement thus made 
 up, and after having it in his possession 18 months, he deliber- 
 ately states to this Court that he did not know of said division 
 of goods, nor of said interest upon his deficiency of capital, 
 nor of said estimated losses ; and while this allegation, so false, 
 in fact, was blistering upon his tongue, he brings forth the said 
 " Exhibit A" containing all these items, and proving beyond 
 all controversy, that his said allegation was not only untrue, 
 but that he knew it to be untrue at the time he made it. 
 
 The estimated amount of losses in the said firm of Cooley, 
 Farwell & Co., at $100,000, is not far from the actual losses. 
 But suppose it was far short of the actual losses, who is to 
 blame for it ? Who made it up ? It is said : it is in FarwelPs 
 hand- writing. Does that prove that it was made wholly upon 
 his judgment ? By no means. It may have been, and proba- 
 bly was, based upon the combined judgment of all the pai'tners. 
 
 Mr. Leiter, in his last deposition, testifies, " that at about that 
 " time the partners were in secret consultation for some time." 
 
 But suppose it was too large or too small an estimate of the 
 losses ; is that strange ? Was there ever a profit and loss ac- 
 count made up without mistakes ? The very nature of the 
 losses of a mercantile house, resulting mainly from debts, ren- 
 ders it impossible to say in many cases, what amount is, and 
 what amount is not good. A man that is good to-day, may 
 be worthless to-morrow, and the man that is not worth a pen- 
 ny to-day, may be worth his thousands to-morrow. A profit
 
 88 
 
 and loss account made tip from debts due a firm, cannot be 
 made up with any certainty of accuracy. The most that can 
 be done, is an approximation to the amount of the real losses, 
 Avhich are always the subject of correction. At that time, 
 especially, it was an impossibility to get at the true amount of 
 loss. And who was to blame for it? No one. It Avas, in 
 fact, a mere matter of judgment, and the means or grounds of 
 that judgment Avere open alike to ah 1 the partners ; and they, 
 severally, are responsible to themselves alone for the same, un- 
 der the bill and answer and the evidence. 
 
 But it may be said that there is a difference between Wads- 
 Avorth's account, as per this "Exhibit A," and his account as 
 it stood upon the books on the 1st day of February, 1862. It- 
 is true, there is a difference in. the grand balance, and it con- 
 sists in the folloAving items, Avhich Avere not made up until the 
 31st of January, 1862, to Avit : 
 First interest on Wadsworth's private account, 
 
 amounting to - $3,651.90 
 
 Amount due on salaries for that year,, of $16,076.38, 
 
 one-fourth of which Avas chargeable to Wads- 
 
 Avorth's account, to Avit, - 4,014.09 
 
 Interest paid for money loaned to pay debts after 
 
 January 20, 1862, amounting to $1,159.66 
 
 Expenses not posted up, 3,154.40 
 
 $4,314.06 
 
 One-fourth of which belonged to Wads- 
 Avorth, to-Avit, - - 1,078.51 
 
 Making an amount of - $8,744.50 
 
 Avhich Avas not embraced in said Exhibit. By adding these to 
 the said Exhibit A, and AVC find that his grand balance as 
 shown-by the books of account after they Avere fully made up, 
 substantially agree Avith his grand balance as shoAvn by said 
 " Exhibit A." 
 
 After all the proof that Ave have referred to upon the matter 
 of complainant's knoAvledge of his private account relatively to 
 his partners, shoAving that he kneAV just IIOAV his and their 
 accounts stood, relatively, he, oiipage 19 of Bill, alleges, "that 
 he received the notes of said firm (C., F. & Co.) for $10,000 as 
 stated in said Avriting, meaning said agreement of the 21st of
 
 89 
 
 January, 1862: "that the same were charged to his private 
 " account on the books of said firm, and that Cooley & Far- 
 " well charged the said merchandise to their private accounts ; 
 " and your orator shows that he was induced to sign the above 
 " writing (to-wit, of the 21st of January, 1862,) and enter into 
 " the stipulations thereof solely by the representations of said 
 " Cooley & Farwell, above mentioned ; that he knew nothing 
 " as to the relations which his private account bore to the pri- 
 " vate account of his partners, except as they informed him, 
 " and unless he had believed the aforesaid statements of his 
 " partners he would never have assented to the aforesaid 
 " arrangement." It would seem from this, when we compare 
 it with other portions of his bill, and especially when we con- 
 sider it under the evidence that complainant was wholly 
 regardless of both truth and consistency. 
 
 ELEVENTH ALLEGATION. 
 
 On page 19 and 20, complainant further alleges, "that his 
 " partners have retained the exclusive control of the said assets 
 " and business of the late firm (of C., F. & Co.^; that by 
 " the terms of the last named writing, he had assented to their 
 " so doing, and that, consequently, he did not interfere with 
 " their proceedings (and why ? because he wanted them to 
 " collect his share of said assets and relieve himself therefrom, 
 " after the debts of Cooley, Farwell & Co. were paid), that 
 " they delayed making a final settlement a long time, and that 
 " your orator became somewhat impatient and urged them fre- 
 " quently to settle with him, but their invariable reply was, 
 " that the firm debts were not yet paid and' the assets in no 
 " condition to divide. * * * And that on or about the 
 " 28th day of January, 1863, he received a note of that dte 
 " signed by his said partners, Cooley & Farwell, to the effect 
 " that the debts of the old firm of C., F. & Co. had been liqui- 
 " dated, and they were ready to divide the remaining assets, as 
 " per agreement executed upon expiration of said copartner- 
 " ship." 
 
 By referring to said agreement, made on the 21st of January, 
 1862, it will be seen, that by it "nothing further (was) is to 
 " drawn from the assets of the aforesaid firm (of C., F. & Co.) 
 " or of the firm of Cooley, Wadsworth & Co., until the copart- 
 
 12
 
 90 
 
 " nership debts of Cooley, Farwell & Co., are fully paid, after 
 " which the remaining assets of both firms shall be .divided 
 ''pro rata, according to the amounts due each." 
 
 Mr. Spink testifies on page 119, int'y 108, "that the books 
 " show that the bills payable were closed on the 23d day of 
 "January, 1863." 
 
 Mr. Leiter testifies on page " that the debts of the 
 
 " said firm of C., F. & Co. were paid on the 24th day of 
 "January, 1863." 
 
 Mr. Spink testifies, 011 pages 115 and 116, int'y 99, " that in 
 " order to pay said debts, the 2d firm of C., F. & Co., (com- 
 " posed of Cooley, Farwell & Field) advanced at one time the 
 " sura of $202,612.34, and that the average advances, from the 
 " 1st of March, 1862, to the 1st of January, 1863, was $86,- 
 " 500.00, and that the average balance of the same from the 
 " 1st day of April, 1862, to the 1st day of September, 1863, 
 " was, in round figures, $109,000." 
 
 From this testimony it is conclusively proved, that Cooley 
 & Farwell, so soon as the debts were paid, they gave notice 
 of the fact to Wadsworth, and they were ready to divide the 
 remaining assets under said agreement. On page 579, int'y 
 45 and 46, Mr. Leiter testifies, upon the preparation for a divi- 
 sion of said assets, that " numbered lists of notes, accounts and 
 " real estate were made by Mr. Farwell, and tickets with cor- 
 " responding numbers on them, in the spring of 1863, after the 
 " debts were paid ; and in answer to the 58 int'y, he says, no 
 " division has taken place, as he understands." On page 593, 
 " int'y 73, Mr. Leiter testifies, " that on the 6th of February, 
 " 1863, Mr. Wadsworth received of the collections of said 
 " remaining assets, the sum of $3,497.77." 
 
 Wadsworth admits the notice to him of the payment of the 
 debts, and readiness of Cooley and Farwell to' divide the 
 remaining assets, on the 28th of January, 1863; and it will be 
 seen by the testimony of Mr. Bnllard, on page 680-1, that he 
 was on the 18th of May, 1863, again notified of the payment of 
 said debts and of their desire to divide the remaining assets 
 under said agreement. And notwitstanding these notices, he 
 boldly affirms, that he was and had been vainly endeavoring to 
 get Cooley and Farwoll to divide the said assets, and they 
 refused so to do. Wadsworth, and not Cooley and Farwell, 
 has refused to divide said " remaining assets." And whv does
 
 he refuse? His excuse is (as set forth in his bill oh page '20), 
 " that the said Cooley & Farwell had not turned sai<f //.v.w* 
 " into money, and therefore they were in no condition to divide, 
 " except the goods." They never agreed to turn said assets 
 into money before they were to be divided. Where is tin- 
 proof that they made any such agreement with him';* There 
 was none made, and there cannot be any proof of any. Mark! 
 He does not say that he refused to divide because deceit and 
 false statements had been used ; but that " they had not turned 
 ft aid assets into money, except the goods." The goods did not 
 belong to the firm. They liad long before been disposed of. 
 Was he ignorant of this? By no means. Why then does he 
 call them assets? Simply to keep his farce before the Court. 
 As soon as there was a sufficient amount of money realized 
 from said assets to pay the debts of the firm of C., F. <fc Co., 
 the debts were to be paid, and then, without waiting to convert 
 any more of said assets into money, the remaining portion 
 thereof were to be divided pro rata between the said partners, 
 according to the amount " due to each " partner (see agree- 
 ment on page 642). AS soon as there was money sufficient to 
 pay the debts they were paid, and there was no more money 
 left to divide. "The remaining assets," were to be divided pro 
 rata between the partners, according to the amount due to each. 
 
 The next thing to be done under said agreement was to di- 
 vide said assets, not to convert them into money and then di- 
 vide them. ' This, Cooley & Farwell had notified him to do ; 
 but he says, " he found them in no condition to divide, bi-fo>tx< j 
 they were not converted into money /" He, and not Cooley & 
 Farwell, has refused to divide said " remaining assets 1 ' under 
 said agreement. 
 
 In this connection, I desire to call special attention to one 
 clause in said agreement of the 21st January, 1862, which de- 
 fines clearly the meaning of the parties thereto, upon the ques- 
 tion of compensation or of consideration, in part, for the 
 services of Cooley & Farwell, in paying said debts with said 
 assets. It is as follows: " The profits of c</r/t member of the 
 " aforesaid firm of Cooley, Farwell d < '<>. In ing determinedly 
 Li the sale of the stock (of merchandise) //.s before stated, (to 
 " Cooley t Farwell}, as shown by the profit and loss account, 
 " all expenses of closing the business of said firm will be paid 
 ''from the assets left in the hands of Cooley & Farwell for 
 " that purpose"
 
 92 
 
 By this clause of said agreement, it is evident that the par- 
 ties thereto intended by it to compensate Cooley & Farw ell for 
 their services as well as for their expenses in converting a suf- 
 ficient amount of said assets into money, to pay said firm's 
 debts with. The reason given is plain and reasonable, 
 to wit, "the profits" of that firm "were determined by the 
 sale of the merchandise to Cooley & Farwell." The profits 
 being determined ended therefore they could not be com- 
 pensated for such services from profits arising from the business, 
 therefore the " remaining assets" that should be on hand after 
 the payment of the debts, were to be first applied to the pay- 
 ment of ' all expenses of closing the business of said firm, left 
 " in the hands of Cooley & Farwell for that purpose," and 
 then a division of the "remaining assets" is to be made, "pro 
 rata, between the partners, according to what is due to each." 
 The testimony shows that no consideration has been received, 
 and no charge made in the books of account for said services. 
 And it 10 ill also be noticed, that, by this clause of said agree- 
 ment, the said partners, one and all and each of them, exam- 
 ined the book accounts of said firm, and in fact made the 
 basis for making up the profit find loss account, before said 
 agreement of the iilst of January, 1862, was entered upon, and 
 which was a part of said agreement. Take this clause and 
 compare it with the said " Exhibit A," on page 44 of Spink's 
 deposition, and this court can come to but one conclusion, to- 
 wit ; that there was a full accounting had between the part- 
 ners at that time, and that the said division of the merchandise 
 of the firms of C., W. & Co., Nos. 1 and *2, between the part- 
 ners in the ratio of profits ; and that the agreement to cast 
 interest upon deficit and surplus of capital in the firm of C.,F. 
 & Co., and that an estimate of the losses of the firm of C , F. 
 & Co., were all taken into such accounting at the time, and be- 
 fore the said agreement was made as aforesaid, and were made 
 a part of it. 
 
 TWELFTH ALLEGATION. 
 
 On page 20, complainant states, " that the mode of division 
 " (of assets) proposed by Cooley & Farwell was not to convert 
 " the same into money and divide the proceeds pro rata among 
 " the several partners, but to draw lots for them in kind, * * 
 " and that they, (C. & F.), had appraised said assets, and your 
 " orator was not consulted as to said appraisal, and had no 
 " voice therein, and never assented to the same; * * and
 
 93 
 
 " he insists that said appraisal is fictitious, and is a large over- 
 " estimate of the true value of such assets." 
 
 By this allegation he desires the court to believe that there 
 was an attempt on the part of Cooley & Farwell to coerce him 
 into a division of the said remaining assets upon an estimate 
 and classification entirely fictitious. Is there any evidence to 
 show that Cooley & Farwell or either of them sought to co- 
 erce him into a division upon their estimate or valuation, or 
 upon a ficticious valuation ? None, whatever. 
 
 Now, if complainant was as ignorant of the value of said 
 " remaining assets" as he pretends to be, how did he know that 
 the valuation (if one was made) of Cooley & Farwell was 
 " fictitious, and an over-estimate of the true valuation ?" Does 
 he not, by this statement, clearly^ admit his knowledge of these 
 assets and their true valuation ? Does he not admit that he 
 knew of the relative value of each lot ? He does not say that 
 he is informed and believes the valuation was "fictitious and 
 an over-estimate," but that he knows it to be so. How does 
 he know it except he was familiar with the same that is, with 
 the books of account, the notes or bills receivable, the bonds, 
 &c ? To know their value was to know all about the books, 
 and the business of the eaid firm. 
 
 THIRTEENTH ALLEGATION. 
 
 On page 20 of bill, complainant states : " And your orator 
 " further sheweth, that at the date of the proposed division of 
 " such assets, (as aforesaid), said Marshall Field had been fully 
 " paid, and the private accounts of said Cooley & Farwell 
 " were, pro rata, largely in excess of your orator's private ac- 
 " count, and that in order to equalize said private accounts, a 
 " very large sum of money was due to your orator from his 
 " said copartners, and that if your orator's private account had 
 " been made equal to the private accounts of his said partners, 
 " by drawing from said remaining assets in the manner propo- 
 " sed as aforesaid by his said partners, your orator's loss would 
 " have been immense by reason of the excessive valuation 
 " placed upon such assets, (as aforesaid)." 
 
 This allegation the defendants deny. 
 
 First. As we have already seen, under the 7th noted alle- 
 gation of bill, (see ants., pages 61-2,) Mr. Field was only a clerk 
 for said firm of C., & Co., and a creditor of said firm, and 
 therefore should be paid in full, as other creditors were.
 
 94 
 
 Second. As to that part of the allegation which asserts for 
 the third or fourth time, that " the private accounts of Cooley 
 " & Farwell were, pro rata, largely in excess of complainant's 
 " private account, and that in order to equalize said private 
 " accounts, a very large sum of money was due complainant 
 " from his said partners ;" we have only to refer the court to a 
 full discussion of this matter first, under the sixth noted al- 
 legation, see ante., 57 to Gl, inclusive, and especially to the 
 consideration of the evidence collated under the "Tenth Alle- 
 gation," (see ante., pages 78 to 89 inclusive, to show how false 
 it is. 
 
 But before dismissing this allegation, we desire to call at- 
 tention to the said alleged " excessive valuation placed upon 
 " said assets by Cooley & Farwell" by which " complainant's 
 " loss would have been immense." 
 
 The evidence shows that there were assets on hand to be 
 divided between the said partners after the payment of all the 
 debts of the said firm, the nominal amount of about $280,299.- 
 75, and that before the correction of the said errors, by Mr. 
 Spink, hereinbefore mentioned, the pro rata share of each 
 partner's interest therein was as follows : 
 
 Cooley's -$128,496.14 
 
 Wadsworth's 103,231.15 
 
 Farwell's - - - - 48,571.46 
 
 Making the total amount as above, - $280,299.75 
 
 See Spink's ev., page 74, cross int. 31. But in this answer of 
 Mr. Spink, he treats the Wabash Avenue building account of 
 $7,943.06, and the interest thereon, as unpaid ; but, as we have 
 already seen, this account has been paid by Mr. Cooley, and 
 the money thereof so paid went to pay the debts of said firm, 
 and hence Cooley's interest in said remaining assets are in- 
 ci'eased to the amount of said building account, over the said 
 balance named by Mr. Spink in his said answer, and thus 
 Cooley's said balance, according to Mr. Spink, would be as 
 above stated. 
 
 Now, suppose this valuation, (if it may be called one), or 
 rather, these nominal balances, could not be realized from said 
 nominal amount of assets, and that the said assets were not 
 worth more than one-half of their nominal amount.
 
 95 
 
 The whole nominal amount being - 280,299.75 
 
 Half of this would be 140,149.87! 
 
 What is the effect of such a depreciation upon the relative 
 rights and interests of the partners ? Why, simply to reduce 
 their nominal account of their several interests therein to half 
 of the said nominal amount ; and then 
 
 Cooley's, instead of being $128,497.14, would be $64,248.57 
 Wadsworth's,instead of being $103,231.15 wo'ldbe $51,615.57^ 
 FarwelPs, instead of being $48,571.46, would be $24,285.73 
 This reduction of the nominal balances does not change the 
 real value of the assets, nor the pro rata interests of the several 
 partners therein. It simply reduces the nominal value of the 
 said " remaining assets" to a supposed real value of the same, 
 and in so doing the relative interests and rights of the partners 
 therein are the same under both valuations. This mode of the 
 division of the " remaining assets" between the partners, is 
 one, made by the agreement of the said partners after their 
 said accounting and settlement was had, and was one of the 
 considerations rendered by complainant to Cooley & Farwell 
 for their great undertaking to pay the debts of the said firm 
 with the assets thereof, and relieve the complainant from all 
 labor and care about the payment of said debts. The said 
 agreement of the 21st of January, 1862, recognizes this among 
 other considerations, for the division of the "remaining assets" 
 between the partners in the "pro rata" amount of the several 
 interests of the said partners therein. Another consideration 
 was, the said Wadsworth received $10,000 of the firm's notes 
 or money at that time. Another was, that Cooley & Farwell 
 were to take of the firm the goods on hand, at the invoice price 
 or nominal valuation of the same. This agreement on the part 
 of Cooley & Farwell was fulfilled to the letter. The complain- 
 ant himself fulfilled all the conditions thereof, until the time 
 came to divide the " remaining assets," after the payment of 
 the debts. He obtained from the firm, first, $10,000, in its 
 notes and money ; second, he obtained the labor and skill of 
 Cooley & Farwell for one year in converting sufficient of the 
 assets to pay the debts of the firm ; and, third, he received from 
 Cooley & Farwell a release of his personal labor and care in 
 converting said assets into money sufficient to pay the said 
 debts ; and, then, after having reaped the great benefits of said 
 agreement- to himself, he then turns round, and, while grasping
 
 96 
 
 and holding all the benefits of the agreement, and without of- 
 fering to restore one of them, either to the firm or to Cooley & 
 Farwell, he comes into this court and asks it, not only to allow 
 him to continue to hold and enjoy all the benefits of said agree- 
 ment, but to aid him in taking from Cooley & Farwell the ben- 
 fits which are supposed to accrue to them under the said 
 agreement. But complainant and his counsel say, " that com- 
 " plainant's account in the firm of Cooley, Farwell & Co. was 
 " not largely over-drawn, and that it stood relatively as well 
 " as his partners', and much better than Farwell's." The evi- 
 dence shows that the complainant's account was- largely over- 
 drawn. Mr. Spink says, on page 111, cross-int. 87, that "In 
 the firm of Cooley, Farwell & Co., the partners' accounts 
 stood, on the 21st day of January, 1862, as follows : 
 Cooley drew $53,311.86 
 
 Wads worth drew 52.376.38 
 
 Farwell drew (erroneously including the sum 
 
 of $5,000, loaned to him, and the interest 
 
 thereon), 37,364.71 
 
 Now, it will also be remembered in this connection that Mr. 
 Spink also testifies that the partners' drafts, (the original agree- 
 ment having been violated in this particular), should be in their 
 ratio of profits. Thus Cooley was entitled to draw twice the 
 amount of complainant, and Farwell was entitled to draw an 
 equal amount to that of the complainant. 
 
 Upon this ratio of the relative amounts the partners had a 
 right to draw, according to the evidence, as follows: Mr. 
 Spink testifies, on pages 112 and 88, " that Cooley & Farwell 
 " would have been entitled to draw $66,452.57 over and above 
 " the amount they did draw," to be equal in their drafts, rela- 
 tively, to that of Wadsworth's drafts. Surely, this looks as 
 though the complainant's account was on the said 21st day of 
 January, 1862, relatively largely overdrawn. 
 
 Now if these " remaining assets," were not worth one cent, 
 and the proof declared them wholly worthless, even then the 
 said considerations and conditions mentioned in the said agree- 
 ment, which the said complainant took and now enjoys under 
 the same, would not allow this Court to compel Cooley and 
 Farwell to make up the complainant's loss, if it were greater 
 than theirs; and because of the said conditions and considera- 
 tions mentioned in said agreement which were taken and are
 
 97 
 
 now held and enjoyed by the complainant under the same. 
 This agreement supercedes all the said original articles of co- 
 partnership. The complainant cannot go back to those articles, 
 and abandon the said agreement. The agreement must stand, 
 for it is paramount to them and complainant cannot presume 
 to go back to said 01 Iginal articles of copartnership, unless he 
 1st restores the parties to their original status, by returning 
 the said $10,000 in money, and reward Cooley & Farwell for 
 their years' labor under the said agreement, and 2d, he must 
 2)rove fraud on the part of Cooley and Farwell in making the 
 said agreement as aforesaid. The first he has neglected to do. 
 At the time the said agreement was made, said " remaining 
 assets" were deemed to be worth in money about $129,452.00 
 that is, the loss on the " remaining assets " were estimated 
 as follows : 
 
 On those of the firm of Cooley, Farwell & Co. about $100,000.00 
 " " Cooley, Wadsworth& Co. " 49,015.29 
 
 $149,015.29 
 
 (See Mr. Leiter's testimony on page 582, int'y 59.) 
 It will also be seen from the testimony of Mr. Leiter on page 
 578, int'y 36, that at that time Mr. Farwell had collected upon 
 said remaining assets (since the payment of said debts) about 
 the sum of $ 75,913.15 
 
 that the real estate was worth - 30,840.00 
 
 and that the balance of said assets then were worth 26,841.00 
 making the total value in cash - - $133,594.15 
 
 instead of - - >-"" - 129,452.00 
 
 as per said estimate made at the time said agree- 
 ment was made, making a difference of only $5,421.14 
 and this amount more valuable than they had estimated 
 them to be. 
 
 This certainly was a very close estimate. Since Mr. Leiter's 
 testimony Avas taken some $15,000 more of said assets have 
 been converted into money by Mr. Farwell, and we have no 
 doubt, but that the said " remaining assets" will realize much 
 more than was estimated by the partners at the time the said 
 agreement of the 21st of January, 1862, was made. However 
 this may be, as long as there is valuable " remaining assets," 
 sufficient to equali/e the accounts between the partners, neither 
 are harmed and jioue should complain. That there would not be
 
 98 
 
 such a sufficiency, was a contingency not provided for by said 
 agreement, or anticipated by said partners. Had they failed 
 to realize from said assets no more than was siifficient to pay 
 said debts, that circumstance would not change the relative 
 rights and interests of the partners under said agreement, nor 
 would it affect the said agreement or the settlement then made. 
 
 FOURTEENTH ALLEGATION. 
 
 On pages 21 and 22 of complainant's bill, he alleges, " that 
 " after he received the said notice to divide said " remaining 
 "assets," to-wit, on the 28th of January, 1862, "he speedily 
 " discovered a multitude of errors in the said copartnership 
 " books, all of which were to his prejudice, and that at the 
 " time of the extension of said copartnership (of C., F. & Co.) 
 " under the articles of agreement of December 4th, 1865, to- 
 " wit, on the 1st of February, 1857, there was charged to your 
 " orator's private account on the books of C., W. & Co., the 
 " sum of $11,087.03, and to FarwelPs the sum of $11,062.84; 
 " that shortly before this C. & F. had built the store occupied 
 " by the firm, with the funds of the firm of C., W. & Co., and 
 " that an account thereof was kept in the name of ' ^Building 
 " Account,' an d that there was a balance due on said account 
 " at that time of $9,475.46, and that half of it should have been 
 " charged to Farwell's account, thereby increasing his private 
 " account at that date to $15,800.57. And your orator at the 
 " date of the extension of said firm as aforesaid, under the 
 " name of C., F. & Co., your orator stood better than Farwell 
 " upon the books, by $35,000 and that by the said agreement 
 " of extending said firm (of C., W. & Co.) under the name of 
 " C., F. & Co., it was stipulated that the capital should be 
 " paid in as fast as collected, * * and that the effect of 
 " said stipulation was to leave the partners in the same relative 
 " position as to capital as before. And that Farwell, regard- 
 " less of his duty and in direct violation of the stipulation in 
 " said agreement of extension, opened new books and transferred 
 " the available assets in manner following, to-wit, CHARGING 
 " THE CONCERN (firm of C., F. < Co.) WITH THE MERCHAN- 
 "DISE (on hand) VALUED AT $115,369.84 AS STOCK, AND CRE- 
 
 " DITING COOLEY ON HIS SUBSCRIPTION TO SAID STOCK ACCOUNT 
 " HALF OF THE SAME, VIZ. : $57,684.92 ; AND CREDITING HIM- 
 " SELF AND YOUR ORATOR ON THEIR SEVERAL SUBSCRIPTIONS TO
 
 99 
 
 " SAID STOCK, ONE-QUARTER OF THE AMOUNT THEREOF, OR THE 
 
 " SUM OF $28,842.46 TO EACH ; and then claims that such mer- 
 " chandise should have been divided in the. ratio of the capital 
 " of the firm of (7., W. & Co. ; that by the division made of 
 " said merchandise, Farwell appeared to have overpaid his 
 " said subscription more than $8,000, while his (Wadsworth's) 
 " subscription appeared to be less than half paid. He then 
 " alleges on page 24, that although interest was to be paid 
 " under the first agreement of copartnership, yet, by said stipu- 
 " lation it was omitted; but his partners, in violation of said 
 " stipulation, charged interest against him upon his nominal 
 " subscription of $80,000 up to the time of the dissolution of 
 " said firm, and thereby interest run against him to a large 
 " amount, and that this was done without his knowledge or 
 " consent." 
 
 From this allegation, complainant charges that nine things 
 have been done by his partners in violation of their agree- 
 ments with him, to wit : 
 
 1st. That on the 28th of January, 1863, when he received 
 the said notice to divide the said " remaining assets," as afore- 
 said, he, (the said complainant,) speedily, at once, at that time, 
 discovered a multitude of errors, and all to his prejudice. 
 
 2d. The first error was : Farwell's store building account 
 was not charged to him, but was kept in a separate " Building 
 Account." 
 
 3d. The second was : Farwell's stock account was more 
 than paid, while complainant's was not ; when, in fact, he stood 
 $35,000 better in his account than Farwell. 
 
 4th. That the said firm of C., F. & Co., was treated by 
 Cooley and Farwell as a new firm ; whereas, in fact, it was only 
 a continuance of the firm of C., W. & Co., No. 2. 
 
 5th. That Farwell, in violation of the agreement of the 
 partners, opened new books for the firm of C., F. & Co., as a 
 new firm, and transferred the merchandise on hand at that time 
 to the stock account of C., F. & Co., as a new firm. 
 
 6th. That Farwell, in violation of the agreements of the 
 partners, then divided the said merchandise so transferred be- 
 tween the partners in the ratio of their share in the profits, by 
 which Cooley received half of the same, to wit, $57,684.92, 
 and Farwell and himself received, each, $28,842.46, and that
 
 100 
 
 said respective amounts were credited to the stock account of 
 each partner in the said firm of C., F. & Co. 
 
 7th. That said merchandise should have been divided be- 
 tween the partners in the ratio of their capital in the firm of 
 C., W. & Co. 
 
 8th. That Cooley and Farwell charged him, in violation of 
 their agreement with him, interest upon his nominal capital 
 stock of $80,000, without his knowledge or consent. 
 
 9th. That the effect of all this, was to show that Farwell 
 had overpaid his capital stock, and that he was short in his. 
 
 1st. We have already shown that the said store "building 
 account " was kept separate upon the books, in order to keep 
 an account of its costs, for convenience sake, and that Mr. 
 Spink testifies that there " was no impropriety or injury done 
 to either of the partners by its being so kept," and that there 
 " was propriety in so keeping it." We have also shown that 
 the same was paid by Cooley and Farwell with interest thereon. 
 And we have likewise shown, by both Mr. Spink and Mr. 
 Loiter, that the Wabash Avenue building account was desig- 
 nated as follows: " Wabash Av. Building Account, F. H. (?.," 
 meaning, thereby, that it belonged to Francis IB. Cooley, and 
 that he paid the same with interest thereon, and that no one 
 was injured 4n any manner thereby, and that there was " no 
 impropriety in so keeping it." For the evidence sustaining 
 these declarations, see the " Tenth Allegation," ante pages 
 from 78 to 89. 
 
 2d. We have also shown that the private account of com- 
 plainant was, relatively, largely overdrawn, and for the proof 
 of this, see ante pages 53 to 57, inclusive. It is true that com- 
 plainant upon this point claims, that at the time he made the 
 said agreement of the 21st of January, 1862, he made a mis- 
 take in looking over his and his partners' private accounts, and 
 that " he did not discover his mistake," (that his account was 
 relatively overdrawn) until he received the said notice on the 
 28th of January, 1863, to divide said " remaining assets " when 
 lie caused the books to be re-examined. For the evidence of 
 this, see ante pages 57 to 61, inchisive. 
 
 3d. We have also shown, that at the close of the first firm 
 of C., W. & Co., there was a new firm formed by the same 
 name, but that it was formed on far different terms ; and that 
 at the close of the said 2d firm of C., W. & Co., another new
 
 101 
 
 linn was organized, also upon different terms, under the naine 
 of C., F. & Co., and that the 2d firm was not a continuance 
 of the 1st, nor the 3d firm a continuance of the 2d finn ; and 
 that the merchandise of one firm was transferred to the suc- 
 ceeding firm, and then divided between the partners in the 
 ratio of profits, and then each partner's share of such division 
 w:is credited to his new capital stock at the invoice price, and 
 that this was in conformity to the agreement of the part- 
 ners, and that complainant was a party to these transactions, 
 and knew all about them. For the evidence of this, see ante 
 pages 39 to 50, inclusive, and pages 78 to 89, inclusive, (and 
 Spink's ev., pages 111 and 112, cross 87 and 88.) 
 
 If there were no new firms formed on new terms and condi- 
 tions, by which the relative rights and interests of the several 
 partners were changed from that of the preceding firm, how 
 can complainant claim that Farwell's capital stock was not, 
 relatively, greater than his ? Let us examine this. And to do 
 so we will recall the substance of a former illustration, and 
 suppose, that in the 2d firm of C., W. & Co., there was just 
 $200,000 net assets. Cooley's share of this is just half, viz : 
 $50,000 original capital, and $50,000 profits, mak- 
 ing - $100,000 
 Wadsworth's share is $40,000 original capital, and 
 
 $25,000 profits, making 65,000 
 
 Farwell's share is $10,000 original capital, and $25,- 
 
 000 profits, making .- 35,000 
 
 Now suppose they agree to continue said firm and to put 
 in all these assets as capital into the firm, under the name 
 of Cooley, Farwell & Co. for five years, does not even 
 this agreement, without reference to the time capital of 
 Cooley and Farwell, change the relative interests of the part- 
 ners from that of the said 2d firm of C., W. & Co.? Mani- 
 festly, it does; and how? In the said firm of C., W. & Co., 
 there was $100,000 capital, as follows: Cooley, $50,000, or 
 half of the same ; Wadsworth, $40,000, or two-fifths, which 
 would be sixteen-fortieths of the same ; Farwell, $10,000, or 
 one-tenth, which is four-fortieths. In the firm of C., F. & Co., 
 on the supposition named, of $200,000 capital, by bringing 
 down the several interests of the partners in the said firm of 
 C., W. & Co., and putting the same into the firm of C., F. & 
 Co., to the credit of each partner in the ratio of each part-
 
 102 
 
 ner's interests therein, and the partners would stand in their 
 several capital stock to each other as follows : Cooley, half, 
 or $100,000; Wadsworth, $65,000 or thirteen-fortieths, and 
 Far well, $35,000, or seven-fortieths, which would be a gain of 
 capital by Farwell in the firm of C., F. & Co., over that of 
 Wadsworth's capital in the said 2d firm of C., W. & Co., of 
 three-fortieths, and a loss to Wadsworth of three- fortieths, 
 which would make a difference of six-fortieths between Wads- 
 worth and Farwell. 
 
 This simple illustration shows the utter absurdity of the 
 assertion of complainant, that his account in the firm of C., F. 
 & Co. would stand relatively to his partners, the same as in the 
 firm of C., W. & Co., No. 2. The value of the services of 
 Cooley and Farwell in the firms of Cooley, Wadsworth & 
 Co., No. 2, and C., F. & Co., relatively to each firm, the 
 complainant entirely overlooks. In the said firm of C.. W. & 
 Co., No. 2, Cooley put in as capital, in fact, half of the money 
 and half of the service capital, to wit, $50,000 money and $30,- 
 000 for services, making half of cash and service capital, and 
 received half of the profits. Wadsworth put in cash, (but no 
 service capital) of $40,000, and received one-fourth of the 
 profits. Farwell put in cash, $10,000, and services $30,000, 
 making $40,000, which made him equal, in capital, to Wads- 
 worth, and he received one-fourth of the profits. In the firm 
 of C., F. & Co., Cooley put in cash capital, $100,000, and ser- 
 vice capital, $60,000, making his capital, in fact, $160,000, and 
 he was to receive one-half of the profits. Wadsworth was to 
 put in as capital, $80,000 in money, t but no service, and was to 
 receive one-fourth of the profits. Farwell put in cash capital 
 more than $20,000, and service capital $60,000, making more 
 than $80,000, the same being more than equal to Wadsworth's 
 agreed capital, and he received one-fourth of the profits, the 
 same as Wadsworth. In cash and service cap.ital, Cooley, in 
 both firms, was intended to be just equal to Wadsworth and 
 Farwell, and he received one-half of the profits and they the 
 other half, or one -fourth each. In cash and service capital, 
 Farwell, in both firms, was intended to be just equal to Wads- 
 worth's capital, and he, therefore, received the same ratio of 
 profits with him. But, in the firm of C., F. & Co., Farwell 
 gets in behalf of the firm for his services, from Wads- 
 worth, the use oi $60,000 of capital, instead of only $30,000,
 
 103 
 
 which he received for the use of the firm for his services to the 
 firm of 0., W. & Co. 
 
 5th. We have also shown, in answer to the last aforesaid 
 allegation of complainant, that Wadsworth knew of the charge 
 of interest upon deficiency of capital stock in the firm of C., 
 F. & Co., and that the same with the said division of the said 
 merchandise between the partners in the ratio of profits were, 
 at the time of the making of said agreement of the 21st of 
 January, 1863, taken into consideration by the partners, and 
 formed a part of the basis of that agreement and settlement. 
 For the evidence of this, see ante pages from 39 to 50, and from 
 78 to 89, inclusive. 
 
 In this connection, we desire to call especial attention again 
 to the allegation of complainant, on pages 21 and 23 of his 
 bill, wherein he states, in substance, " that at the time of the 
 formation of the firm of C., F. & Co., Farwell, in violation of 
 his (copartnership) agreement, opened new books for that firm 
 and transferred the available assets of the former firm to the 
 said new firm, including the said merchandise, and divided 
 the said merchandise, half to Cooley and one-fourth to Wads- 
 worth and Farwell each, that is, he divided said merchan- 
 dise in the ratio of profits, and then credited the said respective 
 shares to the capital stock of each partner in the firm of C., 
 F. & Co." 
 
 By this allegation, complainant states that the said division 
 of said merchandise and the credit of the same to the capital 
 of said firm of C., F. & Co., was done at the time when said 
 new books of the said new firm of C., F. & Co. were opened, 
 to wit : on the 1st day of February,, 1857, and so they were 
 divided at that time ; yet he, in other parts of his bill, denies 
 all knowledge of it. But his acknowledgment of this knowl- 
 edge and agreement of this division of said merchandise, and 
 that of the charge of interest on deficit of capital, in one part 
 of his bill of complaint, and then his denial of all knowledge 
 of these facts in other parts, are settled by the evidence which 
 he introduces through Mr. Spink, in said Exhibit A, on page 
 44, of ev. By this Exhibit and the evidence of Mr. Leiter, 
 hereinbefore referred to, the division of the said merchandise 
 between the partners in the ratio of profits, and the credit of 
 the same in that ratio to their several stock accounts, and the
 
 104 
 
 charge of interest on deficiency of capital, on the basis of 
 $80,000 to Wadsworth, is fully proved and established. 
 FIFTEENTH ALLEGATION. 
 
 On page 26 of bill complainant states, " that his said part- 
 ners, by means of the erroneous entries in saidfirni's ( C., F. 
 & Co.) books, and by representing said books to be correct, in- 
 duced your orator to enter into the aforesaid agreement of 
 January 21st, A. D. 1862, and that he, in fact, signed said 
 agreement under an erroneous impression of his rights in the 
 premises, induced by the aforesaid condition of saidjirni's 
 books, and by the representation of his said partners, and he 
 does and will insist that for the condition of said books and 
 for tJie consequent error into which he fell, his said partners 
 are wholly responsible, and that said agreement, last named, 
 is a fraud iipon your orator, and is wholly void." 
 
 To this language, I desire to call the especial attention of 
 tlie Court. Complainant states that he fell into error at the 
 time he made said agreement of the 21st of January, 1862, 
 and in this wise : 1st, By reason of " the erroneous entries in 
 said firm's books," and 2d, by his partners, " representing said 
 books to be correct," and that thereby " induced your orator 
 (complainant) to enter the aforesaid agreement of January 
 21st, A. D. 1862." And then, to convince the Court that he, 
 (complainant) at the time he made said agreement, examined 
 the books of said firm for himself, he adds, by insisting " that 
 for the condition of said books and for the consequent error 
 into which he fell, his partners were responsible." 
 
 From this language, can this Court come to any other con- 
 clusion, than that the complainant, at and before the time he 
 made said agreement, examined for himself the said books of ac- 
 count ? Could he have made it more certain, that he did ex- 
 amine them, and that the entries therein agreed with the state- 
 ments of Cooley and Farwell ? The language used by him is 
 direct, clear and certain. TbejreJ^uio ambiguity about it. 
 
 What is more certain, therfTthat ne examined said books, 
 and the entries therein, and that the same agreed with the 
 statements of Cooley & Farwell at that time ? What is ren- 
 dered more certain than that he made said agreement of the 
 21st of January, 1862, upon his own examination of the said 
 books ? Mark. Complainant does not say that he relied up- 
 on, the, statements of Cooky & Farwdl as to ic/tat was in, the.
 
 105 
 
 books, but that he examined the books to see if the entries 
 therein agreed with or supported their statements, and that he 
 found that they did. He docs not state that he had no access 
 to the books, and that lie depended alone on the statements 
 made to him, but he insists that they, (the books), were before 
 him, and that he examined them to see if they supported said 
 statements, and he found they did. He says lie made a " mis- 
 take;" in consequence of what? Why, because the books and 
 the said statements of his partners agreed. Has he intro- 
 duced any evidence to prove that he made a mistake in his ac- 
 count? No ; for he admits that they agreed, and the evidence 
 proves that they did. But he says, he (complainant) made a 
 mistake. How, and in what? Why, he says his account was 
 represented largely over-drawn as compared with his partners', 
 and the books showed it to be so, and he supposed from an ex- 
 amination of them that it was, but in this he, (complainant), 
 was mistaken. Mr. Dunham testifies to the only mistake the 
 complainant made ; and that was, that at the time he made 
 said agreement, the prospect for butiuess was very doubtful, 
 and that he and his partners wanted to go out of business, and 
 that he did go out, and that he made a "mistake" in going out. 
 This is the only mistake under the evidence. See evidence, 
 page 620, Ints. 7, 8 and 9. As we have before seen, the books 
 and the said "Exhibit A," of Mr. Spink's, on page 44 of ev., 
 showed the division of the merchandise in the ratio of profits, 
 and the charge of interest upon deficit of capital, and the said 
 two building accounts, and if they were errors, why did he 
 not say so, and insist upon it at the time, instead of putting 
 said " Exhibit A" into his pocket-book, and, keeping it there 
 for eighteen months, until he had reaped all the benefits of said 
 agreement, and then bring it forth from his pocket and declare 
 that he never knew anything about it ; and then puts it into 
 the evidence by his own witness. Like the Ostrich, he seeks 
 to hide his duplicity by putting his head under the sand, while 
 his whole body is left out to mark his position. Did any one 
 ever encounter such gross inconsistency ? 
 
 SIXTEENTH ALLEGATION. 
 
 On page 20 complainant alleges, in the face of the preceding 
 allegation, "that as soon as he discovered the aforesaid errors 
 "in the firm's book^ to wit, 011 o; 1 -about the 24th day of
 
 106 
 
 " March, 1863, he repudiated the aforesaid agreement of Janu- 
 "ary 21st, A. D. 1862." 
 
 This is certainly strange language, and a strange charge 
 when compared and considered in connection with the allega- 
 tion last above quoted. And it also appears very strange when 
 compared with the said llth noted allegation on page 20th of 
 bill, (see ante, page 89,) wherein complainant states, " that on 
 " or about the 28th of January, 1863, he received a note of 
 " that date signed by his said partners, Cooley and Farwell" 
 relative to dividing said remaining assets after the payment of 
 the debts under said agreement ; and " that immediately ripon 
 " the receipt of said note, your orator had an interview with 
 " his said partners * * (page 21.) Your orator promptly 
 " declined the aforesaid proposal to divide the remaining as- 
 " sets, * and for the first time to examine said copartnership 
 " books, and the several private accounts of the partners" 
 
 Here then we have three statements, made by him in his bill 
 of complaint, relative to the time when he examined said books, 
 to wit : the first is on page 26 of bill, where he says in effect 
 that he examined the said books and the entries " before he 
 " made the said agreement of the list of January, 1862." 
 The second is on pages 20 and 21, last above recited, by 
 which he says in effect that he examined the said books and 
 the sereral private accounts on the 28th of January, 1863;" 
 and now, on page 28 of bill, he states that " when he first dis- 
 covered said error, to wit, on the 24th of March, 1863, he re- 
 pudiated the said agreement." For the evidence to prove the 
 said 15th noted allegation untrue, see ante, pages 53 to 57, in- 
 clusive ; see also ante, pages 78 to 89, inclusive. 
 SEVENTEENTH ALLEGATION. 
 
 On page 26 of complainant's bill, he states "that during the 
 "existence of the partnership aforesaid, his partners dealt 
 " more or less in real estate, and your orator believes they used 
 " the copartnership funds for that purpose." 
 
 This allegation is without foundation, and wholly unsup- 
 ported by proof. The several firms were frequently obliged 
 to take security upon real estate to save a debt, and in perhaps 
 a few instances were obliged to take real estate in payment of 
 debts or lose the debt, and that in this way said firms became 
 possessed of their said real estate.
 
 107 
 
 EIGHTEENTH ALLEGATION. 
 
 On page 11th of bitt^ complainant states "that no settle- 
 " mcnt of said copartnership accounts hatli ever been made 
 " between your orator and said Cooley, Farwell and Field, 
 " and that your orator hath frequently applied to them to come 
 " to a final settlement with respect thereto." 
 
 If the said agreement of the 21st of January, 1862 was not a 
 settlement, what was it ? It is true it was not a settlement 
 with Field, for he was not a party to it, neither was he a part- 
 ner of either of the firms above named. If it was not a settle- 
 ment, why does complainant ask that the same be set aside ? 
 Does not this agreement settle every partner's account with 
 the firm, and then provide for the payment of its debts, and 
 then for the final division of the " remaining assets " of all the 
 firms between the partners ? There can be no doubt of this. 
 This agreement was a full settlement after a full accounting 
 had, and it cannot be set aside, except on the ground of abso- 
 solute fraud proved to the satisfaction of the court. 
 
 Complainant states in this, his last allegation, that Field was 
 a partner. As we have before shown there is no evidence 
 showing him to have been a partner. And what is conclusive 
 upon this point is the fact, that neither the agreement forming 
 the partnership, nor the one dissolving it, in any manner or 
 form recognise him to have been a partner; neither do the 
 books of accounts); but these do recognize the fact that he was 
 a clerk for said firm of C., F. & Co. Why does the Com- 
 plainant assume that he was ignorant as to who were and 
 who were not partners in the said firm ? Why does he make 
 a final settlement of all matters on the 21st of January, 1802, 
 and reduce it to writing, and then subscribe to it, by which he 
 cleai-ly names the firms and the partners in the firm of Cooley, 
 Farwell & Co., declaring thereby, that neither Field, nor 
 Simeon Farwell were partners, and then assert in his bill that 
 they were partners, but he does not know what their share in 
 the profits were ? The only reason that I can see for such 
 inconsistent positions, is, that he in and by his said bill of com- 
 plaint, desired to make prominent that he knew but little 
 about his said copartnership matters, and that his claim that a 
 " fiduciary relation " existed between him and Cooley & Far- 
 well, was real. What the relation between himself and Field
 
 108 
 
 and Simeon Farwell were, ho docs not attempt to inform ns. 
 The duplicity manifested by the complainant in this and in 
 other particulars in his bill, is remarkably striking, and leads 
 one irresistibly to suspect his motives in his professions of 
 injury sustained. 
 
 NINETEENTH ALLEGATION. 
 
 On page 4 of bill, complainant says, that in the firm of 
 Cooley, Wads worth & Co., " eacli partner was to be allowed 
 interest on his capital when paid in." On page 5, he alleges, 
 " that by said articles of copartnership he was exempted from 
 active duty in the business of said new firm, his credit and 
 influence were indispensible in the prosecntion of the biisiness 
 and Avere far more valuable than the active services of the 
 aforesaid active partners. After the dissolution of said firm, 
 to-Avit, on the 22d day of May, 1851, complainant on page 6 of 
 his bill says, that he and Cooley & Farwell, by their instrument 
 under seal of that date, " agreed to continue the aforesaid 
 business for (or upon) the terms and regulations as Avere 
 therein named, with the exception that, the agreement concern- 
 ing the duties to be performed by your orator and the said 
 Phelps, formed no part of the aforesaid agreement of the 22d 
 of May, 1851, as in and by said last named agreement, will 
 on reference appear.''"' On page 8 of bill he further alleges 
 that " in all things he performed the duties imposed on him by 
 the said several copartnership articles, and that owing mainly 
 to his credit and influence the said firms transacted a large 
 and profitable business." 
 
 By reference to the original article of agreement of the firm 
 of Cooley, "VVadsAA r orth, Phelps & Co., on page 197 of printed 
 evidence, it will be seen that WadsAvorth & Phelps Avere not 
 required to spend all their time at the store in'the active duties 
 of the business, but Avere to use their influence in its behalf. 
 Phelps Avas however to have the general supervision of the 
 purchasing of goods, and the active partners (Cooley & Far- 
 Avell) Avei'e allowed to draAV funds from the concern to meet 
 .their current expenses. 
 
 It Avill also be seen by the said agreement of Cooley, Wads- 
 Avorth & Favwell, written on the back of the said copartnership 
 agreement of Cooley, WadsAvorth, Phelps & Co., that the pro- 
 vision in said original agreement, by Avhich "Wadsworth and 
 Phelps were relieved from active service in the business of
 
 109 
 
 tli.it firm, was annulled by the new partnership agreement, and 
 thereupon it was as much the duty of Wads worth to render 
 his services to the said new firm as it was that of Cooley and 
 Farwell. This new agreement will be found on pages 198-9 
 of printed evidence, and is in words and figures following: 
 
 " We, the undersigned, hereby agree, that whereas, the firm 
 of Cooley, Wadsworth, Phelps & Co. was on the 14th inst. 
 dissolved by mutual consent, we will continue the business for 
 the term stipulated in their articles of agreement herewith 
 annexed, under the same terms and regulations as are therein 
 named, with the exception that the agreement concerning the 
 duties to be performed by E. S. Wadsworth and Win. H. 
 Phelps shall form no part of this covenant. 
 "Witness our hands and seals, this 22d day of May,A.D., 1851, 
 
 "F. B. COOLEY, ' 
 
 E. S. WADSWORTH, 
 
 JNO. V. FARWELL." 
 
 By this agreement, it will be noticed, that the several part- 
 ners in this new firm were equally liable and obligated to 
 devote their services to the business of the firm. No time 
 capital was in fact however contemplated on the part of Cooley 
 & Wadsworth, but time capital was allowed to Farwell. This 
 is clear from the fact that Far well's profits were greater than 
 his relative proportion of the cash capital ; while the profits of 
 Cooley & Wadsworth, as between themselves, were equal; but 
 as between themselves and Farwell, their profits and cash capi- 
 tal, as compared with his cash capital, were unequal. 
 
 Now it will be remembered, that the testimony of Miles and 
 Simeon Farwell proves that Cooley and Farwell faithfully ren- 
 dered their services to the business of the said firm of Cooley, 
 Wadsworth & Co. No. 1, and it as clearly proves, that Wads- 
 worth did not render his services to its business, but gave his 
 time and attention to his private business. 
 
 It will also be remembered that the defendants on page 3 of 
 their answer, state that complainant, failing to render his ser- 
 vices to said firm's business, he, in consideration thereof, agreed 
 that no interest should be charged upon the capital stock of 
 the partners. In the settlement of this firm's affairs, both 
 Cooley and Wadsworth carried this parole agreement into
 
 110 
 
 effect ; and their several accounts were so settled and entered 
 upon the books of that firm at the time of its dissolution. But, 
 notwithstanding this settlement in March, 1854, the complain- 
 ant, after ten years had elapsed, directs Mr. Spink, his account- 
 ant, to disregard this agreement, and cast interest upon the 
 capital stock of this firm, and in his computations in chief, this 
 interest is included in order to swell his account and depre- 
 ciate that of Farwell's. 
 
 As a further reason why no interest was charged upon the 
 capital stock of said firm, at the time of the dissolution of the 
 same the assets of the firm in notes and accounts were divided 
 between the partners, and each assumed for himself the re- 
 sponsibility of collecting the same ; and Phelps, Wadsworth 
 and Cooley, by agreement with Farwell, placed that labor upon 
 Farwell ; and, as a consideration for this labor, ( said Phelps 
 paid Farwell five per cent, upon the amount he collected for 
 him, and the said Wadsworth and Cooley agreed that no in- 
 terest should be charged upon the capital stock of said new 
 firm. And, as a further consideration for complainant's non- 
 attendance upon the 1 business of the firm and of the collections 
 of his said portion of said outstanding debts, he allowed the 
 commissions of two Insurance Companies of which he was 
 agent, to pass to the credit of the firm, instead of to his per- 
 sonal credit. 
 
 In order to sustain the position we have taken, and to make 
 the facts appear, we desire to call the attention of the Court to 
 the testimony of Mr. Phelps, as well as to the books of account 
 of the said two firms. 
 
 Mr. Phelps testifies, on pages 442-3, int. 14, "that Mr. 
 "Wadsworth was agent for two Insurance Companies at Hart- 
 " ford, Conn., the commissions of which, after a few months, 
 " for some reasons, he allowed to go to the credit of the firm 
 " instead of his own private account. (Int. 15). And said 
 "commissions amounted, I should think, to $1,500 or $1,600 a 
 " year." 
 
 On page 444, in answer to int. 22, he testifies as follows : 
 " I arranged with Mr. Farwell to collect my portion of the 
 " debts due the firm of Wadsworth & Phelps, after the forma- 
 " tion of the firm of Cooley, Wadsworth, Phelps & Co. I can- 
 " not state the exact amount of the consideration ; I paid him 
 " a certain amount without regard to per centage, but I think
 
 Ill 
 
 ' it amounted to 3 or 5 percent. (Int. 23). At this time Wads- 
 " worth and myself had divided our claims." 
 
 On page 445, in reply to int. 29, he testifies, " Mr. Cooley 
 " objected very strongly to my leaving the concern (Cooley, 
 " Wadsworth, Phelps & Co.) Mr. Farwell preferred that I 
 " should stay. There was considerable feeling about it by Mr. 
 " Cooley, in particular, but finally, on further consultation with 
 " Wadsworth, he (Cooley) consented to it." 
 
 On pages 445-6, he testifies, in reply to int'ys 30, 31, 33, 34 
 and 35, " that the partners that took supervision and control 
 " of the business, were Cooley and Farwell at Chicago, and I 
 " to buy the goods in New York. Wadsworth employed his 
 " time, I suppose, in his private business. It was worth from 
 " three and a half to five per cent, to collect said clajms. The 
 " merchandise on hand at the close of the said firm of Wads- 
 " worth & Phelps, was divided, one-half to Phelps, one-fourth 
 " to Wadsworth and one-fourth to Cooley ; they went into the 
 " new firm of Cooley, Wadsworth, Phelps & Co., as capital. 
 " Wads worth' s capital, of course, (which he put in,) was the 
 " consideration that caused us, Cooley, Farwell and myself, to 
 " admit Wadsworth into the firm, and the capital was suffi- 
 "cient for the business of the firm." 
 
 On page 656, J. S. Miles testifies, in answer to int'ys 3 and 
 4, " that he was acquainted with said firms from March 1st, 
 " 1851, to February 1st, 1857. I worked for them as salesman 
 " and traveling agent. The active partners, who had the con- 
 " trol of the business, were Cooley and Farwell." 
 
 On page 657, he testifies, in answer to int'ys 5, 7 and 8, " that 
 " Wadsworth did not have a great deal to do with the custo- 
 " rners. He did not take an active part in the business. The 
 " business was chiefly done and managed by Cooley and F:ir- 
 " well. My impression is, that he introduced very few custo- 
 " mers. I think he sold very few goods, if any. I do not know 
 " of his ever traveling in the country for the purpose of collect- 
 " ing debts. Mr. Wadsworth had his office in the house, I 
 " think, all the time. I think he did not take an active part in 
 " the business. During that time he did not act in the capacity 
 " of salesman." 
 
 On page 658, in answer to int'ys 12 and 13, ho testifies, " that 
 " Farwell traveled iii the country considerably during the fore-
 
 112 
 
 " part of the partnership ; and he introduced a nnmber'of cus- 
 " tomers, and made considerable effort in that direction." 
 
 On page 663, in reply to cross-int. 22 and 23, put by Mr. 
 Woodbridge, he testifies, " that Mr. Wads worth, during the 
 " time was not in any active business. My impression, as to 
 " his reputation for wealth was, at the commencement, that he 
 " was wealthy." 
 
 I think toward the latter part of it he became somewhat 
 embarrassed. On page 669, in answer to int'y 23, 26, 27, 28 
 and 36, he testifies, " that at the time witness was first ein- 
 " ployed by the firm, in 1850 or 1851, Mr. Phelps was the 
 " principal manager of the business. The active partners were 
 " Cooley, Farwell and Phelps. Mr. Wadsworth had consider- 
 " able out side business. I don't know what it was. I don't 
 " think he Spent much of his time on the business of the firm. 
 " Cooley and Farwell traveled some and they probably made 
 " most of the new customers. I think they all passed through 
 " the hands of Mr. Farwell in ol'taining credit." On page 670, 
 in answer to int'y 34, he testifies, that " during the existence 
 " of the firms of Cooley ', Wadsworth & Co., Wos. 1 and 2, 
 " Mr. Farwell loas the most influential among their customers. 
 "Mr. Wadsworth had the reputation of being a cautious and 
 " shrewd business man. 
 
 From this testimony it is seen that the statement of Cooley 
 and Farwell in their answer, to-wit, that no interest was to be 
 charged on the capital stock of the partners in the first firm of 
 Cooley, Wadsworth & Co., stands supported, and that the 
 direction given to the witness, Spink, by Wadsworth and his 
 attorney, to cast interest on the capital stock of each partner 
 in this firm, was wrong, and is a fraud upon Cooley and Far- 
 well. By reference to the cross-examination of Mr. Spink, on 
 page 203, iut'y 136, it will be seen what the amount of interest 
 on such capital would be, and its effects upon the several part- 
 ners. His answer is as follows : " I did compute (in my com- 
 " putations in chief) interest on the capital of the first firm, 
 " crediting Cooley for the same $2,880.00 
 
 " and charging him back with seven-sixteenths of the 
 
 " whole interest, credited to the several partners, 2,598.75 
 " thus increasing his credit balance 281.25 
 
 " the same as to Wadsworth. 
 "I credited FarwcH -interest- en -his- capital - - ' 1SO-.0&
 
 113 
 
 " and charged him one-eighth of the whole interest 
 
 " credited to the several partners 742.50 
 
 " thus decreasing his credit balance - 562.50 
 
 " The effect being, to make Farwell pay $281.25 interest to 
 " Cooley & Wadsworth each." 
 
 In this little matter of interest the complainant has caused 
 his witness to wrongfully incorporate into his computations in 
 chief against Farwell the sum of $562.50, when at the same 
 time he knew that this matter had been fully settled more than 
 ten years ago. Will this Court go behind this settlement of 
 this matter, and cast the evidence of this settlement contained 
 in the books of account and the corroborating testimony above 
 quoted aside, and thereby say that the partners in that firm 
 made no change in their said original agreement in regard to 
 interest upon the capital stock paid into that firm, and at this 
 late day re-open said books and said settlement for an adjust- 
 ment in that regard, upon the basis of the said original articles 
 of copartnership ? From the articles of copartnership forming 
 the first firm of C., W. & Co., Mr. Wadsworth was under as 
 much obligation to render to the business of that firm his ser- 
 vices, as either Cooley or Farwell. And, from the evidence, it 
 is certain that he did not render his services, while they did. 
 And there ought to be, and there was, a consideration rendered 
 by both Cooley & Wadsworth, to Farwell, for his services in 
 collecting their old debts, in which Farwell had no interest 
 whatever ; and Wadsworth, in fact, at the time, rendered to 
 Farwell most cheerfully the said considerations for his non- 
 attendance upon the business of the firm as above specified, but 
 now seeks to get it all back. Mr. Cooley abides by his agree- 
 ment, why should not Mr. Wadsworth respect his ? 
 
 In this connection it will be also remembered, that by the 
 terms of the said original copartnership agreement last referred 
 to, " Cooley and Farwell, the active partners, alone were per- 
 " mitted to draw funds from the said copartnership to meet 
 " their current expenses, and that the profits over and above 
 " (such drafts) were to remain in the business until the same 
 " was closed." By this clause of said agreement it is plain 
 that Cooley and Farwell were entitled to draw from the funds 
 of this firm from year to year of its existence, free of the charge 
 of interest, a sufficient amount for their current expenses, and 
 that Mr. Wadsworth had not this right. By reference to
 
 114 
 
 Exhibit No. 4 to Spink's deposition, on pages 150, 151 and 152, 
 it will be seen that the partners in this firm drew, respectively, 
 as follows : Mr. Cooley, the sum of $3,496 ; Mr. Wadsworth, 
 the sum of $2,140.53, Mr. Farwell, t ,$2,063.7l. Now Mr. Wads- 
 worth had no right to draw this sum of money from that firm, 
 and not having the right so to do, it is clear that he should be 
 charged with interest upon the same in the settlement, provid- 
 ing there was no agreement made by which the rights of the 
 said partners, under their said original agreement, were taken 
 out of said original agreement. We certainly do not find any 
 evidence upon this matter, except that furnished by the books 
 of account ; and by them it is proved that interest was charged 
 to Cooley and Farwell, as well as to Mr. Wadsworth, upon their 
 said respective drafts upon the funds of this firm. In this case, 
 Mr. Wadsworth and his solicitor instructs Mr. Spink to aban- 
 don the said original agreement in this matter of interest, and 
 to follow the entries in the books of account of that firm as the 
 evidence of their agreement to depart, in this particular, from 
 the said original articles of copartnership, and in his computa- 
 tions to charge, as to said books of account, interest to Cooley 
 and Farwell, as well as to W adsworth, upon their said several 
 drafts. We do not mention this to condemn the act, or to 
 exclude this interest from the said several accounts of Cooley 
 and Farwell, but simply to call the attention of the Court to 
 the fact, that Mr. Wadsworth appropriates all the entries in 
 the said books of account of all the aforesaid firms as evidence 
 of the agreement of the partners to depart from their original 
 articles of copartnership, when such entries are in his favor, 
 but when they seem to be against him (and without informing 
 the Court of the real considerations that in fact caused the 
 alteration), he asks the Court to discard such entries as evi- 
 dence of any new agreement between them. If the entries are 
 to be rejected as evidence of a change of agreement in any one 
 or more instances, they must in all cases, unless otherwise 
 explained. 
 
 How is this court to discriminate what entries are to be, and 
 what are not to be taken as evidence of such change of agree- 
 ments ? If the rule that the entries in the books are evidence 
 of changes, as we shall hereinafter show by good authority, 
 what rule can the court adopt that Avill fail to trample upon the 
 rights of the parties thereto, if it should attempt to discrimi-
 
 116 
 
 nate between such entries, and to say which were and which 
 were not proper evidence Tbf such changes ? Such an 
 attempt -would involve the court in -not only great per- 
 plexity, but subject it to the absurdity of not only annulling 
 but of making contracts for the parties. It is the prerogative 
 of a court to inquire and settle as to what the parties have 
 agreed, under the evidence ; but not to make new contracts, 
 or to annul old ones, except on the ground of fraud, clearly 
 proven by him who alleges it. 
 
 It will be remembered that the entries in the books of this 
 first firm prove that the original articles of copartnership were 
 changed in another particular, as we have above said, and in 
 this, that no interest should be cast upon the capital stock of 
 said firm ; and Mr. Wadsworth asks this court to disregard 
 these entries as evidence of such a change, and at the same 
 time to take said entries where interest is charged to the several 
 private accounts of Cooley and Farwell, as evidence of such 
 change. What consistency ! And how is the court to deter- 
 mine which entry is to be regarded and which is not, if it as- 
 sumes that one may be ? 
 
 The extraordinary efforts of complainant and his counsel to 
 swell the private accounts of Mr. Farwell in the said several 
 firms, in order to make it appear, if possible, that complainant's 
 private and stock accounts stand relatively as well as Far- 
 well's, is worthy of particular notice. 
 
 The first effort is found in the matter last above discussed, 
 by which we have shown that complainant directed Mr. Spink, 
 in his examinations in chief, to erroneously include in his com- 
 putations, and charge to the private account of Farwell, the 
 sum of $562.50. The second effort was in regard to the said 
 private loan of Cooley, Wadsworth & Co., No, 2, of $5,000, to 
 Farwell, and the interest thereon, amounting in the aggregate 
 to $8,878.22. (See ev., pages 204, 141.) 
 
 The circumstances of this loan were as follows : When C., 
 W. & Co., No. 1, dissolved, it had a large amount of assets in 
 notes and accounts that needed particular attention ; and when 
 the second firm of C., W. & Co. was formed, Mr. Farwell hav- 
 ing but a slight interest in them, it was more for his interest to 
 devote his undivided attention to the business of the new firm. 
 To induce him to devote extra and all possible attention to the 
 collection and securing of the said old assets in notes and ac-
 
 counts, in connection with ";he business of the new firm, the 
 new firm loaned to Far well the sum of $5,000, at 6 per cent, 
 interest, until such time as such collections, or the most of 
 them, were made. Under this agreement, Mr. Farwell re- 
 ceived this money, and took upon himself said extra responsi- 
 bility and labor in the care and collection of said old assets. 
 From that time to the 21st of January, 1862, Mr. Farwell be. 
 stowed care and labor upon the collection of said old assets 
 without being called upon by either Cooley or Wadsworth to 
 pay said loan. But Mr. Farwell, having no need of this loan, 
 paid the same with interest before his labors were finished in 
 the collection of said old assets. And notwithstanding these 
 facts, complainant feigns ignorance of this transaction, and 
 comes into this court of equity and asks that even this transac- 
 tion should be set aside, and allow him, as he has instructed 
 Mr. Spink, to charge this loan of $5,000 and its interest to the 
 private account of Farwell, as money drawn by him in viola- 
 tion of their partnership agreement, and Mr. Spink so includes it. 
 
 Mr. Spink testifies on pages 204-5, cross 141-2, that, "the 
 " loan of $5,000 to Farwell, and the interest to February 1 
 " 1862, were included in the sum of $11,037.79, but should not 
 " have been, because it was a special loan, not to be refunded 
 by him until certain contingencies had arisen." 
 
 The third effort was in directing Mr. Spink, in his computa 
 tions in chief, to erroneously charge the Wabash Avenue build- 
 ing account of $7,043.06 (which was to his knowledge paid by 
 Cooley with interest) to the private account of Farwell, when 
 he knew that Farwell had nothing to do with the same. (See 
 ev., page 692, I. 10.) 
 
 By adding these three items together, which Mr. Spink erro- 
 neously, in his computations in chief, charged to Mr. Farwell, 
 we find that they amount to $17,383.79. 
 
 And then, in order to reduce his own deficit of capital and 
 over drafts in the firm of Cooley, Farwell & Co., complainant 
 directs Mr. Spink, in his computations in chief, to erroneously 
 credit him, 1st, with the interest on his capital in the said firm 
 of Cooley & Wadsworth, No. 1. 
 
 2d, to credit him with half of the said loan of $5,000 to Far- 
 well, with the interest thereon. 
 
 3d, to omit interest on his deficit of capital in the firm of 
 C., F. & Co.
 
 11? 
 
 4th, to divide all the merchandise on hand at the close of 
 each firm between the partners in the ratio of capital, and to 
 treat the same as so much actual cash. 
 
 5th, to apply half the profits of the firm of C. N. Henderson 
 & Co., to himself and Cooley, and to wholly deprive Farwell 
 of any portion of the same, notwithstanding Farwell was a 
 partner therein, and as one of the firm of Cooley, Wadsworth 
 & Co., he furnished a part of the capital of said firm. 
 
 6th. To omit the charge of $2,500 and interest on his own 
 account, which he had received from the firm previous to the 
 21st of January, 1862, to pay his own note with, but which 
 amount was not charged up until the 24th of January, 1862, 
 but was entered in the cash book as an item advanced to com- 
 plainant. 
 
 Mr. Spink, when asked to explain this matter, says : " The 
 " charge of $2,538.47 is made to the private account (of com- 
 "plainant) as cash on the 24th of January, 1862 ; taking the 
 " ' Exhibit A ' in connection with the same, it seemed to me at 
 " the time of my examination on the subject of this Exhibit, 
 " and it still seems to me, that the charge is for a sum of $2,500, 
 " which had been paid out by the firm for Wadsworth some 
 " time previously, which amount had been carried among the 
 " cash items, and interest on the sum named." (See ev., page 
 89, cross 65.) 
 
 7th. To divide the said goods, sold to Cooley and Farwell 
 on the 21st of January, 1862, between the partners in the ratio 
 of capital, and to treat the same, though unconverted, as so 
 much cash, and to apply the same, even before the debts were 
 paid, toward refunding of the capital paid into the firm of C., 
 F. & Co., in the ratio of capital stock paid in by each on his 
 assumed basis. 
 
 In the division of such merchandise he however fails to 
 furnish to the Court the agreements of the partners, or his rule 
 of dividing the merchandise in the absence of an agreement, 
 but asks the Court to assume that the invoice price was their 
 cash value. Or, in other words, he tears the said agreement 
 in twain, and adopts one part of it, and repudiates the other 
 part of it. Should the Court act upon his hypothesis in this 
 matter, and assume that that was the cash value of the goods, 
 how, then, is it to divide the goods by items and decide between 
 the comparative values of each item ? And then, again, if it
 
 Us 
 
 wei'e possible for the Court to succeed in this, how is it to get 
 the goods back again (in the absence of an agreement) into the 
 succeeding firm as so much capital stock credited to each part- 
 ner ? When you ignore the agreements of the said partners, 
 in all or any one particular, as said agreements are shown by 
 the books of account, and the private and stock account of 
 each partner, and the said agreement of the 21st of January, 
 1862, you are without sail or rudder upon an ocean without a 
 shore, and upon a ship without a compass to guide to a haven 
 of equity, as between the partners. 
 
 The charges and claims of the complainant are without 
 foundation or reason, and, therefore, they are absurd, and the 
 evidence most clearly proves that complainant's bill is utterly 
 without equity. 
 
 Having reviewed the said bill under the evidence, we are 
 now prepared to look into the main questions of the case under 
 the law and the evidence ; and in order to be more perfectly 
 understood, we will divide oiir discussion into parts by distinct 
 numerals, to wit : 
 
 FIKST POINT. 
 
 To set aside the said agreement, made on the 21st day of 
 January, 1862, there must be a sufficient charge of fraud against 
 the parties thereto, and such a charge the complainant has not 
 made. It is evident, from the bill of complaint, that an at- 
 tempt was made on the part of the pleader to make it appear, 
 first, that he did not intend to make a direct, positive charge 
 of fraud, or at least such a charge as to predicate his bill 
 wholly upon fraud ; and, second, he intended, after all, to so 
 charge deception and fraud upon Cooley and Farwell as would 
 set aside the said settlement of the partners, by the said agree- 
 ment. The rule, as laid down and settled, both in this coun- 
 try and England, in the cases of Mt. Vernon Bank vs. Stone, 
 2 R. I. Reports 129, and Glasscott vs. Lang, 22d Enych R. 
 310, is as follows : 
 
 " When a bill upon its merits is stripped of fraud, and there 
 " is not substantive matter enough in the bill to maintain it 
 " without the charge of fraud, and the proof fails to make the 
 " said charge of fraud good, the bill must be dismissed." 
 
 That is, where the substantive charge in the bill is fraud, 
 that must be proved or the bill will fail altogether. We will 
 examine the bill and see what the substantive charges are.
 
 119 
 
 On page 14, complainant states, " that Cooley and Farwell, 
 in the spring of 1859, with the idea of expelling him from the 
 firm of C., F. & Co., stated to him that his account was largely 
 overdrawn, and that he had violated the terms of said copart- 
 nership and forfeited his rights thereunder, and that as a con- 
 dition of his remaining in said firm he must repay the firm of 
 C., W. & Co. some $19,000 and take [upon himself the labor 
 and responsibility of re-imbursing himself out of the Hender- 
 son assets, and that he had no personal acquaintance with the 
 books of Cooley, Farwell & Co., or of the personal accounts of 
 his partners, (mark, he don't say he had no personal knowl- 
 edge of his own personal account !) and he made no personal 
 examination, (page 15) and accepted and relied upon Farwell's 
 statement, and he agreed to assume the said Henderson's ac- 
 count and pay said advances ; that he paid $6,000, and the 
 remaining $13,000 was charged to his private account, and that 
 said statements of C. and F. were not true, and that his ac- 
 count was, relatively, as good as his partners, and better than 
 Farwell's, and that he never discovered his mistake until he 
 caused the books to be examined, and that thereby he has sus- 
 tained a loss of more than $6,000, and he insists that this trans- 
 action should be declared wholly void and he admitted to his 
 original rights." 
 
 On page 17 he alleges that on the 21st day of January, 1862, 
 " C. <fc F. stated that his account was very largely over- 
 " drawn on the books, and that in consideration of his over- 
 " drafts, he made the said agreement on the 21st of January, 
 " 1862." On page 16 he says, " he was ignorant of the books 
 " and of the private accounts of the partners, and that he did 
 " not examine them, and that he relied on their statements, and 
 " they were untrue, but he never discovered his mistake until 
 " he caused the books to be examined." On page 18, he says, 
 " that the books, at the time of making said agreement, were 
 " kept in such a way as to give color to said misrepresentations. 
 [He did, it appears, after all, examine the books at that time.] 
 On page 20, he says, "that on the 28th of January, 1863, he 
 " received notice from C. & F. that the debts were paid, and 
 " they were ready to divide the "remaining assets," under said 
 " agreement, that he then had an interview with them and 
 " found that said assets had not been converted into money, 
 " and therefore were in no condition to divide ; and that then,
 
 120 
 
 " for the first time, (page 21), he examined said books, and 
 " speedily discovered a multitude of errors to his prejudice." 
 On page 23 he alleges that " on the formation of the firm of 
 " C., F. & Co., (to wit, the 1st of February, 1857,) in viola- 
 tion of the copartnership agreement, Farwell opened new 
 " books for that firm, and transferred the merchandise on hand 
 " from the old firm to them, and then divided them between 
 " the partners in the ratio of profits, and credited the share of 
 " each to their private stock account in the new firm, and that 
 " said merchandise should have been treated as so much money 
 " and divided in the ratio of capital." On page 25, he states, 
 " that the said building accounts were fictitious, and that 
 " Cooley did not pay the balance thereof till after the making 
 " of said agreement, and that these errors in the books caused 
 " said books to misrepresent the relative condition of the part- 
 " ner's accounts, to the advantage of C. & F., and without 
 " these, his account was relatively as good as theirs, and better 
 " than Farwell's ; and thereby he teas induced, (page 26), by 
 "the condition of 'the said books, and the representations of C. 
 " <fc F.) to make said agreement, and he insists that for the 
 " condition of the books, and 'for the consequent errors into 
 " which he fell, his partners were responsible ;" (the books 
 were then relied on by complainant, and the entries therein 
 were examined by him), "and therefore said agreement is a 
 " fraud upon him." On page 24 he states that " the mode 
 " adopted by charging interest, was without his knowledge or 
 " consent, and it never came to his knowledge until he institu- 
 " ted an investigation." 
 
 Do these allegations contain sufficient to charge the defend- 
 ants, C. and F., with fraud ? To sustain his bill, complainant 
 must do at least three things, to wit : 
 
 First. He must make positive charges of fraud touching 
 the matters specified. 
 
 Second. If his charges of fraud are sufficient, then, were 
 the statements and representations' upon which he bases his 
 said chai'ges, material, and does he aver that he relied upon 
 the said representations, and had no other means of knowing 
 or learning the truthfulness or falsity of the same? 
 
 Third. If such charges and averments are sufficient, then, 
 has he proved them? 
 
 1st. We answer, that complainant has not, in fact, made a
 
 121 
 
 sufficient charge of fraud in his bill. He has evidently made 
 strenuous efforts to bring himself, in this respect, within the 
 rule ; and, in his attempt, he has made or presented a strange 
 medley of allegations inconsistent and conflicting. But he 
 has failed to make a charge of fraud in such a manner as to 
 give himself the benefit of the same, either in law or in equity. 
 Fraud is not to be imagined or inferred. It must be preferred 
 in such a manner and form as to give the court to understand, 
 by a clear and distinct charge, with proper averments, that the 
 complainant has been defrauded, without having the power or 
 means at his command to avoid, or to inform himself upon the 
 facts which constitute it. In other words, complainant cannot 
 close his eyes to facts that are spread out before him, and 
 which, by simply opening them, he could have seen and read : 
 and then, becaiise he refused or neglected so to do, upon some 
 fancied injury, or by some imaginary loss, sustained by his own 
 neglect, come into a court of equity to be relieved from the 
 consequences of his own acts and neglects. The agreements by 
 which the said firms of C., W. &Co., Nos. 1 and 2, were formed 
 provide, that the partners were to look to the books of account 
 for information as to the condition of said firms, and that of 
 the private stock accounts of the partners ; and that in the 
 said firm of C., F. & Co., at the termination of the contract, 
 Farwell was to render to each partner a just and true state- 
 ment of the condition of the firm, and the amount due to each 
 from the assets. This was all done. An annual statement, 
 (the testimony says), was made and furnished to each partner. 
 He states,, it is true, that this was not done ; but we prove that 
 it was done, and he fails to make the contrary appear by a 
 single witness. More than this, we prove that he must have 
 had personal knowledge of the true condition of all these firms, 
 and of the private and stock accounts of the partners ; for his 
 office was in the office where the books were kept, and he, with 
 the other partners, had free access to them. In addition to this, 
 Messrs. Simeon Farwell and Leiter testify, that he made inqui- 
 ries of them about his account, and they answered such inqui- 
 ries, and that he received an annual statement of his account, 
 and the firm's condition. Mr. Leiter also testifies, that he even 
 inquired of him about the said charge of 813,000 to his account 
 in consideration of the sale to him of the interest of C., W. & 
 Co., in the assets of C. N. H. & Co., and that he (Mr. Leiter,) 
 
 16
 
 122 
 
 at that time, to wit, soon after said agreement of the 21st of 
 January, 1862, was made, informed complainant of the inter- 
 est charged to his account in deficit of capital from $80,000, 
 and that he made no reply whatever. He, himself, brings for- 
 ward the fact of his knowledge of this interest, and of the 
 division of the goods in the ratio of profits, by his said " Ex- 
 hibit A" to Spink's deposition, on page 44 of ev. ; yet with all 
 these facts so well known to him, he comes into this court and 
 says he knew nothing of them. 
 
 But these false allegations he had determined to make so 
 prominent in his bill, that in his efforts to prefer his charges, he 
 tumbles them in such a manner that he stands self-convicted 
 of presenting false statements, and utterly fails after all to make 
 a sufficient legal charge of fraud. His statement on page 24, 
 that he never knew of the said charge of interest, in the face 
 of said " Exhibit A ; " and his statement that he knew nothing 
 of the private accounts and that he never examined the books ; 
 in the face of his statement on page 18, that the books 011 the 
 21st of January, 1862, "gave color to the statements made to 
 him ; " and then his statement on page 25 and 26, " that the 
 errors in the books caused said books to misrepresent the rela- 
 tive condition of the partner accounts," and that thereby " he 
 was induced (that is the books induced him) by the condition 
 of the said books to make said agreement (of the 2lst of Jarty, 
 1862), and he " insists that for the condition of the books and 
 for the consequent errors in which he fell, his partners are 
 wholly responsible" Is this a sufficient charge of fraud ? Can 
 a fraud be made to appear from these statements of the com- 
 plainant ! If he had made in other portions of his bill sufficient 
 charges of fraud, these statements relieve against all of them. 
 The law upon this subject is explicit, and it is stated by Chief - 
 Justice Story, as follows : 
 
 " It is said that if a representation is made to another person 
 " going to deal in matters of interest upon the faith of that 
 " representation, the representation shall be made good ; but 
 " to justify an interposition in such cases, the misrepresentation 
 " must not only be proved ; but that it is a matter of substance, 
 ' or important to the interest to the other party, and that it 
 " actually does mislead him. For if the misrepresentation was 
 " a trifling or immediate thing ; or if the other party did not 
 " trust to it; or icas not misled by it / or if it was vague and
 
 
 " inconclusive in its own nature; or if it was a matter of 
 " opinion or fact equally open to the inquiries of both parties, 
 " and in regard to which neither could be presumed to trust 
 " the other ; in these and like cases there is no reason for a 
 " Court of equity to interfere to grant relief upon the ground 
 " of fraud." 1st Story Equity, sec. 191. 
 
 Upon the same matter, Justice Kent says : " But ordinarily, 
 " matters of opinion between parties dealing upon equal terms, 
 " though falsely stated, are not relieved against ; because they 
 " are not presumed to mislead or influence the other party, 
 " when each has equal means of information." Ib. sec. 197. 
 2d Kent, Com. sec. 39, page 485. 
 
 Justice Kent remarks again, " the common law affords to 
 " every one reasonable protection, but it does not go to the 
 " romantic length of giving indemnity against consequences of 
 " indolence, or a careless indifference to the ordinary and 
 " accessible means of information. If attention is wanting, 
 " where attention icould have been sufficient to protect him 
 "from surprise or imposition, the maxim 'caveat emptor' 1 
 " * let the purchaser take heed,' applies. Let the person buying 
 " see that the title is good. 2d Kent, Com. 484-5. 
 
 He further states, " But there is a settled distinction in 
 " equity between enforcing specifically and rescinding a con- 
 " tract. An agreement may not be enforced, and yet not be 
 " so objectionable as to call for the exercise of equity jurisdic- 
 " tion to rescind it. It does not follow that a contract of sale 
 " is void in law merely because equity will not decree a spe- 
 " cific performance." 2 Kent, Com. 487, 491-2. Seymour vs. 
 Delancey, 6 John, oh. 222. 
 
 SECOND POINT. 
 
 But suppose for the sake of the argument, that we admit for 
 the time being, that complainant's charges of fraud are suffi- 
 cient, he must prove such charges, which he lias failed to do. 
 
 The evidence already introduced, shows, that Wadsworth, 
 at the time of making and entering into said agreement of the 
 21st of January, 1862, knew all about the books of account of 
 all the said firms that he had full and free access to them 
 that he knew about the said division of goods between the 
 partners in the ratio of profits, and that said divisions were 
 carried to the credit of the capital stock of each respective 
 partner in the succeeding firms, and he knew about the charge
 
 124 
 
 of interest at six per cent, upon deficiency and surplus of capi- 
 tal in the said firm of Cooley, Farwell & Co. For this evi- 
 dence, see ante pages from 39 to 50, and from 78 to 89. As we 
 have already said, Mr. Wads worth charges in his own bill on 
 pages 18, 21, 23, that at the time of the making of said agree- 
 ment, the said " books of account gave color " to the state- 
 ments made by C. and F. to him, and that at the time of the 
 formation of the firm of C., F. & Co., " Farwell opened new 
 " books for that firm and transferred the available assets of 
 " the old firm (of C., W. & Co.) including the merchandise, 
 " and divided the merchandise, half to Cooley and one quarter 
 " to Wadsworth and Fanvell each, and credited such division 
 " of each partner to his private stock account in the said new 
 " firm in that ratio." 
 
 By this statement in his bill, he not only makes known his 
 knowledge of said transaction at that time, but he declares the 
 fact, that the said division of the said merchandise betwee'n 
 the partners was made by them in the ratio of profits as early 
 as February 1st, 1857. Take these statements in connection 
 with another, before referred to, on pages 25 and 26 of 
 his bill, to-wit, " that the errors in the books, caused said 
 " books to misrepresent the relative condition of the partners' 
 " accounts" and that thereby, " he was induced (not by state- 
 " ments of C. and F., but) by the condition of the said books 
 " to make said agreement" and then to fasten this inducement 
 " upon the books, he adds, that " he insists, that for the condi- 
 " tion of the books and for the consequent errors in which he 
 "fell, his partners were wholly responsible" Did not then 
 complainant know of the division of the said goods in the ratio 
 of profits and of their disposal as aforesaid and of the inter- 
 est upon his account, and of the condition of his private 
 account relatively to that of his partners/and of the condition 
 of said books ? He must have known all about these matters. 
 He cannot escape any other conclusion, for he stands self-con- 
 victed by his own bill as well as by the said evidence referred 
 to. If he did know, or if he might have known, then there is 
 no fraud. 
 
 But Mr. Wadsworth states in his said bill, that his capital 
 stock in the said firm of Cooley, Farwell & Co. was, relatively, 
 as great as Cooley's, and much greater than Farwell's. Let 
 us examine the evidence, and see what was the actual per
 
 Centage of the cash capital paid into said firm's capital stock 
 by the several partners at the time said agreement was made ? 
 
 Mr. Spink testifies, on page 119, cross 107, on the basis that 
 said cash capital stock was to be- $200,000, that 
 Cooley paid in the sum of $89,046.77, or 48 per cent. 
 
 Wadsworth 54,983.05, or 30 
 
 Farwell - 41,349.70, or 22 
 
 Cooley should have furnished $100,000, or 50 percent, of the 
 capital ; hence he was short 2 per cent, on his share. 
 
 Wadsworth should have furnished $80,000,' or 40 per cent, 
 of the same, and thus he was short 10 per cent. 
 
 Farwell should have furnished $20,000 cash capital, but he 
 furnished $41,349.70, or 12 per cent, more than he agreed to. 
 Thus Wadsworth is proved to be, relatively, short in his capi- 
 tal to that of his partners, as well as, relatively, largely over- 
 drawn, as we have before seen. 
 
 If the complainant had not opened and examined the said 
 books of account, yet if they were accessible to him and daily 
 or yearly entries were made in them for his and his partners' 
 inspection, then the books and the entries therein are admis- 
 sions against him of all the matters therein contained. 
 
 See 1 Greenleaf ev., Sec. 198, notes 3, 4, 5 and 6. 
 Raggett vs. Musgrave, 2 Carrington and Payne, 556. 
 Alderson vs. Clay, 1 Stark, R. 405. 
 Wiltzie vs. Adanson, 1 Phil, evidence. 
 McBide vs. Watts, 1 McCord, 384. 
 Cross vs. Robinson, 2 Wash. C. C., R. 588. 
 
 THIKD POINT. 
 
 But, suppose again, that we admit, for the argument sake, 
 that Wadsworth's charges of fraud are sufficient, and that the 
 proof sustains such charges ; yet, before he can maintain this 
 suit, or even commence it, he must first tender to Cooley, Far- 
 well & Co. the said $10,000, which he admits he received from 
 said firm under the said agreement. His omision to do this is, 
 in law, an affirmance of said agreement on his part ; and, until 
 such tender is made, he cannot claim relief from the provisions 
 or obligations of said agreement. There is nothing more cer- 
 tain than that " where a contract is to be rescinded, it must be 
 in toto and the parties put in static quo" See Hunt vs. Silk, 
 5 East. 449, and 2d, Parsons on Contracts 192, note 0. 
 
 " But where a part execution of an agreement takes place,
 
 126 
 
 Which is incapable of being rescinded, and the parties cannot 
 be put in statu quo, the situation of the parties have been al- 
 tered, and the parties are left to other remedies." Ibid. 
 
 " Where one party elects to' rescind a contract for fraud, lie 
 must return the consideration received before any right of ac- 
 tion accrues, and it is not enough to notify the party defraud- 
 ing and call upon him to come and receive the goods, but he 
 must restore the other party to the condition in which he stood 
 before the contract was made ; if the fraudulent person has 
 entangled and complicated the subject of the contract in a 
 manner as to render a restoration of the parties to their orig- 
 inal condition and rights, the party injured must then do what 
 he can, or offer to return what he has received, before he can 
 rescind the contract." Ibid. 
 
 " Generally, no contract can be rescinded by one of the par- 
 ties, unless both can be restored to the condition in which they 
 were before the contract was made. One party cannot hold a 
 part performance and rescind the balance." 2, Parson on Con- 
 tracts, 192-3. 
 
 C. and F. have performed all the conditions imposed upon 
 them by the said agreement, and Wadsworth has received all 
 he was to have under the same ; and it only remains to divide 
 the said " remaining assets," under the said agreement, and 
 after the parties thereto had changed their statu quo, so that 
 that of Cooley's and Farwell's cannot be restored to them, 
 Wadsworth comes into this Court and seeks to rescind the 
 said contract without giving up his portion of the considera- 
 tion which he has received under the same, and without even 
 offering to give it back. (See 2, Parsons on Contracts 192 
 note 0. 
 
 Judge Story says, " that the mere fact that the bargain is a 
 "hard one, or an unreasonable one, is not generally sufficient, 
 "per se, to induce a Court to interfere." See 1st Story, Eqy., 
 sec. 331. 
 
 And again, it is held, that " if the parties act under a mu- 
 " tual innocent mistake, and with entire good faith, the con- 
 " cealment or misrepresentation of a material fact, will not in- 
 " duce the Court to compel the party concealing it, or affirm- 
 " ing it, to make it good, or place the other party in the same 
 " situation as if the fact were as the latter supposed." See 1st 
 Story, Eqy., sec. 272.
 
 127 
 
 FOURTH POINT. 
 
 The agreement of January 21st, 1862, was, in fact, one of 
 accord and satisfaction ; as least, so far as it went. That is, it 
 was a full settlement of all their partnership transactions, and 
 a final disposal of their several interests in all the said firms, 
 upon a new and independent basis. 
 
 The copartnership agreement of Cooley, Farwell & Co. was 
 fulfilled only in part by Cooley and Wadsworth that is, neith- 
 er of them had paid into the capital stock of that firm the 
 amount specified in the original articles of copartnership, 
 while Farwell had paid in more than his share, as we have just 
 seen. The said copartnership had nearly arrived to its limita- 
 tion. What was to be done ? The partners, too, had all ex- 
 ceeded in their personal drafts upon the joint funds the sum to 
 which they were severally limited by their original agreement. 
 Wads worth's over-drafts were, relatively, much larger than 
 cither of his partners', as we have before shown. Something 
 must be done to equalize matters between them. All and each 
 of the partners acknowledge the justice of this. And what do 
 they and each of them do in the premises ? Why, they meet 
 together, and for two weeks review their affairs. Mr. Leiter, 
 in answer to the 9th Int., on page 602, says " that they were 
 " in the apartment ot Mr. Wadsworth, and in the general of- 
 " fice, and in the private office of the firm, where the safe and 
 " books were kept. The interviews were longer than ordinary 
 " interviews ;" and immediately after said interviews, to wit, 
 on the 21st of January, 1862, they make and execute, under 
 their several hands and seals, a new agreement of that date. 
 They then at once enter upon the said agreement, and in fact, 
 fulfill all and every of its provisions, except the last one, to 
 wit, the dividing between them the " remaining assets, pro 
 " rata, according to the amount due to each" 
 
 Under, and by virtue of, this agreement, Wadsworth takes 
 from the firm's assets, for his personal use, the sum of $10,000 
 and it is charged to his private account. Cooley and Farwell 
 take the goods at their invoice price, and these are charged to 
 their private account ; and the said Cooley & Farwell agree to 
 pay all the debts and the expenses, with the assets named in 
 said agreement, and relieve Wadsworth from all labor, care 
 and responsibility in that regard. All this is done by the said 
 respective parties. What remains to be done is simply to di-
 
 128 
 
 vide the " remaining assets between the said parties, pro rata, 
 " according to the amount due to each" 
 
 Is not this an accord and satisfaction ? (See 2d Parson on 
 Contracts, page 193.) 
 
 "A deed of dissolution," says Colyer, on Partnership, Sec. 
 242, " which, on the face of it, purports to settle all past trans- 
 " actions, and to prevent all future reckonings between the par- 
 " ties, will extend, under certain circumstances, to contracts 
 which were not originally partnership contracts, and where, 
 upon the dissolution of a partnership, it is agreed that certain 
 specific articles, shall become the exclusive and separate prop- 
 erty of one partner, that agreement is final, and the other part- 
 ners have no lien upon that property in case of a deficiency of 
 assets." 
 
 Collyer on P., Sec. 243. 
 Warren vs. Taylor, 8 Sim. 599. 
 Hobert vs. Howard, 9 Mass. 304. 
 
 The law lays down the rule, that, " where the right to rescind 
 " a contract springs from a discovered fraud, a party must not 
 " only restore the other to his original statu quo, but he must 
 " rescind as soon as circumstances will permit, and must not 
 " go on with the contract after the discovery. He must rescind 
 " it at once, and any delay will be a waiver of his right to re- 
 " scind. The mere loss of time, if it be considerable, goes far 
 " to establish a waiver of right ; and if it be connected with 
 " an obvious ability on the part of the defrauded, to discover 
 " the fraud at a much earlier period, by the exercise of ordi- 
 " nary care and intelligence, it would be almost conclusive." 
 
 Second Parsons on Contracts, 192, 278, 279, 280, Notes R, 
 S, T, Martin vs. Roberts, 5 Gushing, 126 Note R ; Mason vs. 
 Bovet, 1 Dennis, 69 Note L ? Selway vs. Fogg, M. & W., 83 
 Note T ; Saratoga R. R. vs. Row, 24 Wend 74 ; Herrin vs. 
 Libby, 36 Me. 350, Ely den. Larmon vs. Morain, 8 Bar. 10 ; 
 Campbell vs. Fleming, 1 Adolphus & Ellis, 40 Note U. 
 
 This agreement of January 21st, 1862, being made and 
 signed by all the partners, Mr. Wadsworth is to be presumed 
 to have participated in the labor of ascertaining the facts that 
 make up its contents, and thereby, (if he did not know before), 
 informed himself in regard to every particular therein stated 
 and referred to. Is there any evidence showing that Wads- 
 worth did not have or could not have had such information
 
 129 
 
 when he entered into said agreement with his partners ? None, 
 whatever. But, on the contrary, there is. evidence showing 
 that he did have this information. It cannot be denied that 
 his opportunities for information Avere as good as either Cool- 
 ey's or Farwell's. His office was in the store, and in one of 
 the apartments of th. 1 general office of the firm, where the safe 
 and all the books of account of all the said firms were kept. 
 He had free access to the books and to all papers; and there is 
 no pretense that he did not have. More than this, Mr. Leiter 
 testifies, on page 574, Int. 15, 16, and 17, that " annual state- 
 " ments were made of the merchandise and money drawn by 
 " each member of the firm ; each partner's statement was giv- 
 " en to him. At the close of each year, statements were made 
 " up on the books of C., W. & Co. and C., F. & Co. the 
 " moneys drawn by each partner were placed in the back part 
 " of the ledger, and the nett profits were placed to a profit and 
 "loss account in the same ledger. There also appeared on the 
 " books of C., W. & Co., the amount of capital stock furnish- 
 " ed by each partner, and on the books of C., F. & Co., the 
 " capital stock was to be furnished, or the capital of the firm. 
 " I herewith append a copy of said statements, marked " Ex- 
 " hibit No. 1," see pages 598, 599, 600, 601, 602, 603 of prin- 
 " ted evidence." 
 
 Not only this, but Mr. Leiter further says, that he (Wads- 
 worth) made enquiries of him about his account and about the 
 said charge of $13,000 to him ; and that some time before the 
 21st of January, 1862, Mr. Leiter, at his request, made out a 
 special statement for him of " his account in the several firms, 
 covering his entire interest therein. I gave him (says Mr. 
 Leiter,) an account, showing the moneys he had drawn in the 
 different years, and of his proportion of the profits so far as 
 they were divided on the books, and also the stock paid into 
 the several firms. On the books of C., F. & Co., profit and 
 loss was not divided, but I gave him the aggregate." 
 
 Nor is this all, for the said estimate made by Mr. Farwell 
 for him, about the 20th of January, 1862, which he produces 
 in evidence attached to Mr. Spink's deposition, marked " Ex- 
 hibit A," divides the goods on hand of the last firm of C., W. 
 & Co., between the partners in the ratio of profits, and charges 
 him with interest on his deficit of capital in the firm of C., F. 
 & Co., from the sum of $80,000, and yet he claims that he had
 
 no information upon these matters, and was deceived by his 
 partners, and that the books of accounts deceived him, and 
 that from these causes he made a mistake. 
 
 That which is plain upon the books must be taken as known 
 by all the partners. 
 
 Mr. Spink says, on page 221, cross 195, "that in his examin- 
 ation of the books, he discovered no evidence of deceit or in- 
 tention to deceive in the manner they were kept." 
 
 Mr. Leiter testifies, in his second deposition, on page 691, 
 int. 5, " that the books of account, after the taking of the said 
 invoice on the 9th of January, 1862, were in a condition to 
 show the profit and loss account, from the accounts making it 
 up, except the matter of clerk hire and interest. He then had 
 all the facilities for closing said copartnerships intelligently be- 
 fore him, and he, unquestionably, did so close them." 
 
 FIFTH POINT. 
 
 Fraud is not to be presumed, either in law or equity. It 
 must be established by proof. 1 Story, Equity, sec. 190. 
 
 The materiality of the fraud is indispensable, and it must 
 not be equally open to each and every of the parties thereto. 
 If it is equally open to the parties, neither can take 'advantage 
 of his or their ignorance, with a view to avoid or set aside the 
 contract. See 2 Parsons on Contracts, pages 192 and 2*70 and 
 note. 
 
 1 Story, Equity, page 213, sec. 191. 
 
 Laidlow vs. Organ, 2d Wheaton, R. 78, 195. 
 
 Evans vs. Bicknell, 6 Vesey, 173,182, 192. 
 
 Wall vs. Stubb, 1 Maddock, R. 80. 
 
 Cadman vs. Homer, 18 Vesey, 10. 
 
 2d Kent Com., page 485, (4th ed.) 
 
 The complainant has failed to introduce any proof to sus- 
 tain the charge of fraud, by a single witness. Fraud consists 
 in false statements, or misrepresentations, or concealments of 
 facts, by which a person is unavoidably misled. What false 
 statement or statements, made by either Cooley or Farwell, 
 has the complainant proved ? Not one. What false repre- 
 sentation or representations, made by either Cooley or Farwell, 
 has he proved upon them ? Not one. So far from it, he has 
 not proved that they, or either of them, ever made any state- 
 ment or representation to him at any time of any kind. What 
 proof of concealment or deception has he produced against
 
 either Cooley or Farwell ? JNone whatever. The book of ev- 
 idence, of nearly 800 pages, contains none. The complainant 
 says that both Cooley and Farwell made statements and rep- 
 resentations to him on the occasion of the making of the said 
 agreement of the 21st of January, 1862, and that the books, 
 agreeing with their statements, he was induced to make said 
 agreement, but he is wholly without proof to sustain this al!0- 
 gation, as we have before seen. 
 
 Mr. Spink testifies, on page 221, cross 195, " that he did not 
 discover any evidence, in his examination of the books of ac- 
 count of all and every of the said firms, any deceit or intention 
 to deceive any one in the manner they or any of them were 
 kept, or in the entries therein." 
 
 In this connection, we desire also to call attention to the fol- 
 lowing (further) authorities upon the points of concealment, 
 false statements, &c. " If the means of investigation is at 
 hand and not improved, relief will not be granted." 
 
 Chapman vs. Shillito, 7 Beave, S. C., 146. 
 
 1 Chitty's Equity Digest, page 930, sec. 3. 
 " Inference of fraud is rebutted by the subject matter of the 
 representation being equally open to the examination of both 
 parties." 
 
 2d Drury & Walsh, 260-1. 
 
 1 Chitty's Equity Digest, page 930, sec. 5. 
 What is there, then, in his bill under the evidence, by which 
 he (Wadsworth) can obtain the relief he seeks ? His bill is 
 based wholly upon suppositions, which fall to the ground as 
 soon as touched, for the want of proof. And his evidence is 
 based wholly upon suppositions, as his main witness, Mr. Spink, 
 testifies : 
 
 1st. On page 81, cross 46 and 47, Mr. Spink says : " I 
 could not and should not have taken account of agreements, 
 simply represented by entries and dcducible therefrom, as I 
 was requested to make my computations (in chief) on the basis 
 of the articles of copartnership, and that he received his in- 
 structions from Wadsworth and his attorney s." 1 " 1 
 
 2d. The three firms, as we have before seen, were treated 
 by both Spink and Smith, complainant's accountants, as one 
 continuing firm, instead of as distinct, and differing in their terms 
 and conditions. Their computations in chief must, therefore, 
 be full of errors, and present a distorted result.
 
 141 
 
 Mi*. Spiuk testifies, on page 136, cross ilS, " that the effect 
 " of my computations, however, on the balance of assets of the 
 "three firms on hand, Feb'y 1, 1862, would not be to change 
 " that balance had I figured the three firms as one continuing 
 " firm. Nor would it change the total balances due each part- 
 " ner, February 1st, 1862, with the exception of a small matter 
 " of interest, figured on deficit of capital in the 2d firm of C., 
 "W. &Co." 
 
 Mr. Smith testifies, on page 414, cross 28, " I made my cal- 
 " dilations on the basis of the books, treating the concerns 
 " (the firms of C., W. & Co., and C., F. & Co.,) as one and 
 " the same firm, from March, 1854, to Feb'y 1st, 1862." 
 
 Mr. Spink testifies, on page 90, cross 67, " that the books 
 " were kept accurately, with the exception of the matter of 
 " errors in interest made in favor of Wadsworth." 
 
 On page 105, cross-int'ys 74, 75, 76, 77, 78 and 79, he says : 
 " The books show full credit." 
 
 Mr. Smith's testimony is the same upon these matters. 
 
 3d. On page 107 cross 77, he says, " that there was no injury 
 " done to either of the partners in having the building accounts 
 " stand on the books in the way they did, neither was there 
 " any impropriety in so doing." 
 
 4th. He testifies on page 114 and 96, " that it is customary 
 when partners fail to pay into the firm their pro rata amount 
 of capital to charge interest on the several deficits. Thus to 
 that extent the deficits become equalized.' 1 
 
 6th. On page 90 cross 68 he testifies, " that interest at 6 per 
 cent, on the amount of capital Wadsworth was short of 
 $80,000, was not in his opiniona fair compensation for the want 
 of the same, or for the amount of labor and capital agreed to 
 be furnished by his partners " (Cooley and Far well). 
 
 7th. On page 82 cross 44, he testifies, " In my computations 
 in chief I computed no interest on deficit or surplus of capital 
 in the firm of C., F. & Co." 
 
 8th. On page 86 cross 53 he testifies, that" he has no recol- 
 lection of casting interest in the firm of C., F. & Co. by reason 
 of over-drafts." 
 
 9th. In page 106 cross 75 he says, " that interest was 
 charged upon the said two building accounts and paid by 
 Cooley and Farwell."
 
 loth. On page 115, 116 cross 99, he says, "that the average 1 
 balance of loans, made by the first firm of C., F. & Co., from 
 the 1st of March, 1862, to the 1st of January, 1863, was 
 $68,500.00, and from the 1st of April, 1862, to the 1st of Sept., 
 1862, was $109,000. "In my computations in chief, and in 
 " my cross-examination I did not take these advances into 
 " consideration, and made no allowance of interest for the 
 " same, while the books did, at 6 per cent." 
 
 llth. On page 116 cross 100 he says, " that interest on this 
 amount so loaned would be as follows, at 6 per cent. $4,110.53, 
 at 10 per cent. $6,830.89." 
 
 12th. On page 204, 205, 141, cross 142, he testifies, " that in 
 " his computations in chief, and in answer to 86th direct int'y, 
 " he included in the account against Farwell the loan of $5,000 
 " when it should not have been included, and because it was a 
 " special loan. The actual amount drawn by Farwell, exclu- 
 " sive of said loan (and interest thereon) was 2,159.56 " (instead 
 of $11,037.'79, as stated in said 86th in chief). 
 
 13th. On page 205 cross 144, he says, " Wadsworth did not 
 "have the right to draw $10,112.65 more than Farwell in 
 " either firm, as stated by him in answer to the 89th direct, 
 " and that his answer to this question was made on the basis 
 " of the question propounded." 
 
 13th. On page 206 cross 145-6 he testifies, " that had the 
 " articles of copartnership and the books of account and the 
 " entries therein and the said agreement of the 21st of January, 
 " 1862, been submitted to him as the evidence of the agree- 
 " ments, he should have made up the books as they were 
 " made up." 
 
 From this testimony, what credit is to be given to the figures 
 and results of Messrs. Spink and Smith's examinations in 
 chief ? They commence under the instructions of complainant 
 and his counsel, by ignoring all the actual agreements of the 
 partners, 1st, by treating the three firms as one continuing 
 firm, 2d, by casting interest on the special loan of $5,000 to 
 Farwell and then charging the principal and interest to his 
 private account as so much money wrongfully drawn by him ; 
 3d, by dividing the goods on hand in the ratio of capital instead 
 of the ratio of profits, and then by crediting the share of each 
 under such ratio to his capital stock in the succeeding firm ; 
 4th, by casting interest on shortage of capital in the firm of C.,
 
 W. <fc Co. when it is in favor of Wadsworth (though very 
 slightly. See Spink, page 136 cross 113), and omitting such 
 interest in the firm of C., F. & Co. when it is against Wads- 
 worth ; 5th, by wholly rejecting the books of account and the, 
 entries therein, and the said agreement of the 1st of January, 
 1862, as the evidence of the settlement between the partners. 
 
 6th. By treating the capital of the firm of C., F. & Co.. as 
 fully made up by Wadsworth and Cooley, while Wadsworth's 
 is only about half made up. 
 
 7th. By omitting the interest on the shortage and overplus 
 of the capital of the several partners in the firm of C.,F. & Co. 
 
 8th. By including the Wabash building account as a debit 
 to C. and F., when that account of $7,943.06, was actually 
 paid by Cooley, and then again excluding it when he brings 
 foncard the balances of the several partners in the " remaining 
 assets " after the debts of C., F. & Co. are paid ; thus in ap- 
 pearance they seek to distort the true facts as to the relative 
 condition of the partners' several accounts, in this one parti- 
 cular, to the amount of said building account, to the disadvant- 
 age of Cooley and to the advantage of complainant. (See 
 Spink's ev., page 74-5 cross 31). 
 
 9th. By taking no account of the time or service capital of 
 C. and F., in. either firm. (See ev., page 68 cross 25). 
 
 This is the mode adopted by complainant to manufacture 
 evidence, to prove fraud upon his partners in the making of 
 the said agreement of the 21st of January, 1862. They do not 
 give to their accountants all the agreements and the books of 
 account, with instructions to make up from them the partner- 
 ship and personal accounts, but they put their accountants into 
 leading strings and under special instructions, giving them a 
 hypothetical basis and only a part of the" agreements of the 
 partners. First they give them the three original agreements 
 as a pretended basis, but at the same time instruct them, to 
 disregard said agreements, wherein they treat said firms as dis- 
 tinct, and direct them to treat them as one continuing firm. 
 
 2d. To ignore all the entries in the books of account wher- 
 ever such entries disagree with their said instructions. 
 
 3d. To ignore the division of goods between the partners 
 in the ratio of profits, and the endorsements made from the di- 
 vision of goods upon their stock notes, marked Exhibits No. 
 1, 2 and 3, on page 148 of ev., and the transfers of such divi- 
 sions to capital stock of the partners in that ratio.
 
 135 
 
 4th. To treat the goods as cash, (when they well know 
 that, in the absence of an agreement, there is no means of fix- 
 ing their value,) and then divide them in the ratio of capital 
 as so much realized cash. 
 
 5th. To cast interest upon deficit of capital in the firm of 
 C., W. & Co., because there would be a trifling advantage to 
 Wadsworth by so doing, and to omit it in the firm of C., F. & 
 Co., because it would be against him, thus violating their hy- 
 pothesis of one continuing firm. 
 
 6th. To cast interest on the said loan of $5,000 to Farwell 
 by the firm of C., W. & Co., No. 2, and then charging the 
 whole amount of principal and interest to his private account 
 as so much money wrongfully drawn by him in violation of the 
 agreements. 
 
 7th. By withholding the said agreement of the 21st of Jan- 
 uary, 1862, from said accountants, and by directing them to 
 treat the said goods on hand and transferred to Cooley and 
 Farwell under said agreement, as so much realized cash, in- 
 stead of so many unconverted assets taken by Cooley and Far- 
 well. 
 
 8th. By instructing them to wholly ignore the service capi- 
 tal of Cooley and Farwell in the said firms, under the copart- 
 nership agreements. 
 
 9th. By charging the Wabash Avenue building account to 
 the account of Farwell, when it belonged exclusively to Cooley, 
 and was fully paid by him with interest. 
 
 What is such evidence worth, when it has no basis in fact, 
 and when it is of itself the grossest fraud possible upon the 
 facts in the case, and does violence to every agreement made 
 by and between the partners ? 
 
 Who does not see that computations made, and balances 
 brought down upon such a fictitious basis, so unjust, and so in 
 the teeth of the actual agreements of the partners, must result 
 in nothing but a perfect and utter perversion of all the facts, 
 under all the agreements made by and between the said part- 
 ners ? No wonder that Mr. Spink denies that he was the author 
 of the basis of his computations in chief, and says, " that his 
 computations were based upon the hypothesis given him by 
 Wadsworth and his attorneys"
 
 136 
 
 SIXTH POINT. 
 
 With all the perversions of fact set forth ^by complainant, 
 let us see what the actual difference is between the said com- 
 putations in chief, on the said " hypothesis of Wadsworth and 
 his attorneys," that all the agreements made and entered 
 upon by and between the said partners, as shown by them in 
 their books of account, and their written agreements taken and 
 considered together. 
 
 1st. In the account of Cooley, the difference is only 
 $503.06. 
 
 2d. In the account of Wadsworth, the difference is only 
 $4,1 74.66 against him. 
 
 3d. In the account of Farwell, with the interest corrected, 
 the difference is only $5,213.74 in his favor. (See ev. pages 
 70 to 74, cross 30.) 
 
 The grand total difference between Spink's examination in 
 chief and the basis of all the agreements made between the 
 partners, would be as follows : 
 
 Cooley^S) $757.62 in his favor, as the books stand; with the 
 interest account computed correctly, a difference of only 
 $221. 70 in his favor. 
 
 Wtidsworttfs, $6, 882.10 in his favor, and with the interest 
 computed correctly, a difference of only $9,390.81 in his favor. 
 
 FarwelVs, $6,717.92 against him; with interest computed 
 correctly, the difference against him is only $8,390.64. (See 
 Spink's ev., pages 74-5, cross 31.) 
 
 The cause of this difference. Mr. Spink testifies, on page 
 75, cross 32, that the causes " are principally on account of in- 
 "terest being figured on the books of C., F. & Co., on short- 
 " age of (cash) capital, from $200,000 divided in proportion of 
 " one-half to Cooley, two-fifths to Wadsworth, and one-tenth 
 " to Farwell, and by the charge of interest on the books on 
 " assets transferred after the division of the goods, and through 
 " the transfer and division of goods on the basis of profits in 
 "the books; while in my computations (in chief) they are 
 " transferred and divided on the basis of first refunding the 
 " capital and then dividing (the balance) on the basis of profits." 
 (See also ev., page 107, cross 79, 80.) 
 
 Here is the whole case in a nut-shell. The question, then, 
 is simply this : Were the goods so on hand and divided be- 
 tween the partners in the ratio of profits, and the said interest
 
 137 
 
 on the shortage of capital from the said respective amounts di- 
 vided and cast by the agreement or knowledge and consent of 
 all the partners ? The complainant says, in some parts of his 
 bill of complaint, that he made no such agreement and gave 
 no consent thereto, and had no knowledge of that transaction 
 until some time in March, 1863. The defendants say that he 
 made such agreements and that he had a statement of the 
 facts. The evidence presented in said Exhibit A, of Spink's 
 deposition, as we have before seen, which complainant pro- 
 duces, proves that he did know of both ; and the testimonyrof 
 both Spink and Leiter is, that said Exhibit must have been 
 made out about the 20th of January, 1862, and the said agree- 
 ment was made on the 21st of January, 1862. The agreement 
 which he seeks to set aside, was based, in part, upon this state- 
 ment, or estimate. This statement contains both the interest 
 against Wadsworth on his said deficit of capital from $80,000, 
 and the division of the goods in the ratio of profits. Upon 
 this point, he stands convicted of making a false allegation. 
 
 As to the division of the goods on hand from the three said 
 firms, the evidence shows that they were divided in the ratio of 
 profits in the three firms and so transferred upon the books. 
 (See Spink's ev., pages 60, 61 and 62, cross 5, 6, 7, 8 and 9.) 
 By reference to the bill of complaint, pages 18, 22, 23, 25 and 
 26, it will be remembered that complainant acknowledges that 
 he knew all about such division of the goods in the ratio of the 
 profits of the interest account, and that he also knew that his 
 private account was, relatively, largely overdrawn. 
 
 Mark his language, hereinbefore quoted, to wit : 
 
 1st. Page 18. "The books of account of said C., F. &Co., 
 " were kept in such a manner as to give color to the represen- 
 tations of Cooley and Farwell, that his account was, relatively, 
 overdrawn." 
 
 2d. Page 21, 22, 23. " That at the date of the extension 
 " (to-wit, 4th December, 1856), Farwell regardless of his duty 
 " and in direct violation of his agreement * * * opened 
 " new books and made a transfer of the available assets in 
 " manner following ', to-wit : goods on hand $115,369.84 to the 
 u jirm of C., F. & Co., charging the concern with the same as 
 " stock, and crediting Cooley on his aforesaid subsection, 
 " half of the same, viz., $57,684.92 to Wadsworth and Far- 
 " well, one-quarter each, 828,842.46. On page 25 he alleges, 
 
 18
 
 138 
 
 " that the various errors above noted in the said firm's books, 
 " caused said books to misrepresent the relative condition of 
 " said partners greatly to the advantage of C. and F., and 
 " to complainant's disadvantage, and to give color to the 
 "recital of said agreement of January 2Ist, 1862, that 
 " your orator had largely overdrawn his account." On 
 page 26 he further alleges, " that by means of the erroneous 
 " entries in said books, and by representing said books to be 
 " correct, induced your orator to enter into said agreement of 
 " Jan. 21s, 1862, and that he signed it under an errone- 
 " ous ^impression of his rights in the premises, induced by 
 " the aforesaid condition of said firm books * * * and 
 " that for the condition of said books and for the consequent 
 " error into which he fell his said partners are wholly respons- 
 " idle. And as soon as he discovered his mistake he repu- 
 " diated the said agreement of January l,2st, 1862." 
 
 These confessions speak volumes ! It was then " the 
 wrongful entries in the books, represented to be correct, that 
 induced him to enter into said agreement." His reliance was 
 upon the " entries in the books " of account, and " these entries 
 " induced him to make the agreement, and he signed it under 
 " an erroneous impression of his rights in the premises, induced 
 "by the aforesaid condition of said firm books." This lan- 
 guage makes a clean sweep of the charge of deception against 
 Cooley and Farwell. It shows, conclusively, that Wadsworth 
 did not rely upon the representations of Cooley and Farwell, 
 (if indeed they made any to him, and the presumption is, that 
 they did not, in the absence of proof, and there is none that 
 they did). This language also shows, that Wadsworth, being, 
 as the evidence makes him, a " sharp, shrewd and cautious 
 business man" and ever watchful of his rights and interests, 
 examines the books of account for himself. He is not willing 
 to trust to any one but himself. In this he acts himself, and 
 reveals his confidence in his own " sharpness, shrewdness and 
 caution," in business matters. After he had finished the exam- 
 ination of the books, and had acquainted himself as to their 
 condition the condition of the stock and private accounts of 
 his own and that of his partners, he was " INDUCED BY THEIR 
 
 CONDITION TO SIGN THE SAID AGREEMENT." He COnfeSSCS that 
 
 he understood the condition of said books of account, and that 
 he made and signed the said agreement on the basis of the
 
 139 
 
 said condition of said books of account. He does not even 
 pretend that he relied upon a statement or representations of 
 Cooley and Farwell, but he went directly to the said books 
 and ascertained for himself what was in them. Neither does 
 he pretend, in this allegation and statement in his bill, that 
 either Cooley or Farwell deceived jhim in the matter of the 
 condition of the said books ; but rather, that he made a " mis- 
 take" After all that has been said upon this matter, it is found 
 that Mr. Wadsworth is seeking in this Court to be relieved 
 from what he pleases to call his own " mistake" 
 
 But let us look a little more closely at the evidence of com- 
 plainant's knowledge of the said division of merchandise in 
 the ratio of profits, and of the matter of interest upon his deficit 
 of capital in the firm of Cooley, Farwell & Co. And for this 
 purpose we again call the attention of the Court to complain- 
 ant's evidence, which he presents through Mr. Spink, marked 
 " Exhibit A " to his deposition. It is on page 44 of printed 
 evidence, and is as follows : 
 
 "Exhibit A." 
 
 " Chicago, Feb'y 1st, 1862. 
 "Mr. E. S. Wadsworth 
 
 " In Account Cooley, Farwell & Co., 
 
 " By i profits - $84,410.78 
 
 " By Stock paid in $28,842.46 
 
 10,419.00 39,261.46 
 
 "Dr. $123,672.24 
 
 " To i losses $25,000.00 
 
 " To private account - - 36,624.90 
 
 " To interest on stock, 6 per cent. - 12,097.02 $73,721.92 
 
 $49,721.32 
 
 Mr. Loiter on page 395, int'y 78, testifies, that this exhibit 
 " must have been made about January 18, 1862, and it appears 
 " to be an estimate of Mr. Wadsworth's condition in the firm 
 " at that time." 
 
 On page 591, int'y 64, he testifies, that " the credit of $28,- 
 " 842.46 (in said Exhibit A) was derived from one-fourth of 
 " the merchandise on hand February 1st, 1857, and the credit 
 "of $10,419.00 was derived from collections from Cooley, 
 " Wadsworth & Co., No. 2." On page 492, int'y 65, he says, 
 that " the item of $12,097.02, charged in said exhibit, was
 
 140 
 
 " charged on shortage of stock of E. S. Wads worth, and this 
 " interest was not correctly figured, and the error was made in 
 " Wads worth's favor." 
 
 Mr. Spink on page 88 cross int'y 61, testifies, that he " heard 
 " Mr. Wadsworth say, that it (said Exhibit A) was a, paper given 
 " him by Far well. Mr. Woodbridge, complainant's solicitor, 
 " asked me before the examination, how it compared with the 
 " books, and whether I could find at what date it was possibly 
 " made. I gave him the explanation of the difference between 
 " the same and the books, and told him that the indications 
 " seemed to be, judging from the amount of the private account 
 " named therein, that it had been made up about the 20th of 
 " January, 1862, bearing date February 1, 1862. It is evident 
 ' from the books and this exhibit, that the same was made 
 " about the 20th of January, 1862. I infer that the statement 
 " or exhibit is an estimate of the affairs of the firm named, as 
 " they would probably stand on the 1st of February, 1862." 
 
 From this evidence, there cannot be a doubt, but that said 
 " Exhibit A," was made the day before the dissolution of the 
 firm of Cooley, Farwell & Co., and the final settlement of all 
 copartnership matters was made one day later, to-wit, on the 
 21st of January, 1862." 
 
 It is not possible that complainant did not know of the divi- 
 sion of the said merchandise of the former firm in the ratio of 
 profits, and of the said interest upon the deficit of capital stock, 
 when he made said agreement, for at that time this identical 
 "^Exhibit A," advertising him of these two facts, was in his 
 hands. If there had been no agreement to divide said mer- 
 chandise between the partners in the ratio of profits, and to 
 cast interest on deficit of capital as aforesaid, and as indicated 
 in said Exhibit, why did not complainant, when he received 
 the said " Exhibit A," protest against such division of the 
 goods, and the interest upon his deficit of capital stock, from 
 the sum of $80,000 ? But instead of doing so he admitted the 
 same as being fully in accordance with his agreement ; and on 
 the very next day again confirmed said division and interest 
 by entering into the said agreement of settlement, and carry- 
 ing the said settlement into effect. 
 
 Is there anything unreasonable in the division of the said 
 merchandise in that manner, when we consider that the said 
 merchandise an old stock of goods were unconverted assets,
 
 141 
 
 upon Avhich labor, skill, money and time must be expended be- 
 fore they can be turned into money ? If merchandise are un- 
 converted assets, (and this must be so conceded under the evi- 
 dence), then they cannot be treated as, or taken to be, cash, or 
 as converted assets, any more than uncollected or unconverted 
 notes and accounts can be. Labor, skill, money and time must 
 be expended on both of these classes of assets before either 
 can be converted into money ; and besides, in the absence of 
 an agreement to fix the value of either merchandise or notes 
 and accounts, there is no rule by which to ascertain their value 
 in money. Some notes and accounts are more valuable than 
 others, and so of merchandise ; and some kinds of both are 
 almost valueless. Goods vary in merchantable quality, in mer- 
 chantable condition and in merchantable styles. Fashions 
 change, and markets are variable ; and a rule that governs 
 their value to-day may not apply to-morrow or next week. It 
 is no more nor less so with wheat and corn and beef and pork, 
 except these latter articles do not go out of fashion, but they 
 may become stale. 
 
 When the said firm of C. N. Henderson & Co. dissolved in 
 June, 1855, Mr. Helm testifies, that in the division of the as- 
 sets between the partners, Mr. Farwell preferred the notes and 
 accounts to the merchandise, and therefore Mr. Henderson 
 took his proportion of the assets in the stock of goods, and 
 Cooley, "Wadsworth and Co. their proportion in notes and ac- 
 counts. 
 
 But it may be urged that the profit and loss account of the 
 firm of Cooley, Farwell & Co. was larger than the said esti- 
 mate contained in said " Exhibit A." By reference to the 
 testimony of Mr Leiter, on page 582, Int. 59, it will be seen 
 that the amount charged to profit and loss was $140,015.29 ; 
 but on page 591, cross-int. 42, he corrects this statement by 
 saying that this amount included the losses of the firms of 
 Cooley, Wadsworth & Co., No. 2, and Cooley, Farwell & Co. 
 From this explanation, it is seen that the said estimate in said 
 Exhibit A was about right. 
 
 Complainant introduced said " Exhibit A" to prove that there 
 is a difference between his account as per the books, and said 
 exhibit. It will be remembered that the books were not made 
 up until the 1st of February, 1862, and that this estimate was 
 made about ten days before that time. It will also be remem-
 
 142 
 
 bered that interest on the private account of Wadsworth was 
 not included in this exhibit, nor were the salaries of the clerks 
 made up at that time ; nor was the interest account on money 
 loaned by the firm, made up ; nor were the exchange and clerk 
 hire and other expenses made up fully at that time. The books 
 as made up and presented in evidence, embrace all these items. 
 These were items which said Exhibit did not pretend to em- 
 brace, and yet they were such, that he could not have been ig- 
 norant of them. By adding these items to said " Exhibit A," 
 and it substantially agrees with the books. 
 
 The interest on his private account was - $3,651.90 
 
 Amount due on salaries $16,056.38 
 
 Interest on money loaned 1,159.66 
 
 Expenses not posted 3,154.40 
 
 $20,370.44 
 One-fourth to complainant, to wit, - $5,092.61 
 
 Making the amount of - $8,744.51 
 
 When this is added to the said statement or " Exhibit A," then 
 it and the books substantially agree, and more nearly than or- 
 dinary guessing could make them. (See books of account for 
 the above items.) This shows how scrupulously exact the 
 parties were in making up the said estimate of losses of the 
 said firm of Cooley, Farwell & Co., contained in said "Exhibit 
 A." And this makes the grand balance of complainant in 
 this firm, when added to said " Exhibit A," agree with his 
 grand balance as shown by the books which were made up ten 
 days afterwards. 
 
 It may be asked, how could Mr. Wadsworth understand 
 said books of account when some of the items of account were 
 not in fact made up until the 1st of February following ? This 
 is easily answered. The stock and private account of the 
 partners were all that was needful for them to investigate and 
 understand, and these being so short they were understood at 
 a glance, or by a mere statement of the items that made them 
 up ; and these were already upon the books. And beside, an 
 inventory had been taken of the merchandise and assets, and
 
 143 
 
 their bills payable showed them the amount of the firm's liabil- 
 ity, and these facts were all that was necessary for the part- 
 ners to understand the true condition of the firm, and of their 
 relative interests and conditions therein. But Jthe said "Ex- 
 hibit A" to Mr. Spink's deposition, shows that the partners 
 Avent further than this in their said examination and consider- 
 ation ; for this proves that they even went so far as to make 
 an estimate of the probable loss upon the assets of the firm of 
 C., F. & Co., and placed this probable loss at $100,000. The 
 division of the merchandise in the ratio of capital, and the 
 matter of interest upon the deficit of cash capital stock of each 
 partner in the firm of C., F. & Co., from that of the several 
 amounts specified in the original copartnership agreement, 
 were both considered and determined, for these are included 
 in the said estimate, which Mr. Wadsworth produced in and 
 by said "Exhibit A." In fact, the partners took everything 
 that was before them for consideration, as being already made up 
 and entered in the books. The business of the firms of C., W. 
 & Co., Nos. 1 and 2, were already settled, the merchandise of 
 those firms was divided and disposed of upon the books of those 
 firms ; and the basis of all entries not made in the books of C., 
 F. & Co., was settled and well understood, and they were 
 taken and considered by the partners as already entered in the 
 books, although the actual entries were not to be made until 
 the first day of February following. This fact of itself, more 
 than anything else, shows that the condition of the said ac- 
 counts, and of the firm of C., F. & Co. were most thoroughly 
 canvassed and understood at the time by Wadsworth; and 
 hence he makes the statement in his bill of complaint, on page 
 26, that the condition of said books induced him to make and 
 sign the said agreement ; and it was and is the said division of 
 the merchandise of the 2d firm of C., W. & Co., in the ratio 
 of profits between the partners, and the casting of interest 
 upon the deficit of Mr. Wadsworth's capital in the firm of C., 
 F. & Co. from $80,000, that he complains of, and these are 
 both in said " Exhibit A," which shows most conclusively that 
 he knew all about these two matters, and that his pretended 
 mistake was just Avhat he told Mr. Dunham it was, viz : that 
 he had made a mistake in retiring from business at that par- 
 ticular time.
 
 144 
 
 SEVENTH POINT. 
 
 It is charged that the firm of Cooley, Farwell & Co. is but 
 the continuation of the firm of Cooley, Wadsworth & Co., 
 No. 2. Now suppose for the sake of the argument, that we 
 treat the said firm of Cooley, Farwell & Co. as but the con- 
 tinuance of the 2d firm of C., W. & Co. differing only in the 
 value of the time or service-capital of Cooley & Farwell, men- 
 tioned in the said articles of copartnership of the said firm of 
 C., F. & Co. and then without said extra capital. What 
 would be the difference between that of the books under the 
 settlement made by the said partners on the 21st of January, 
 1862, and that of treating the firm of C., F. & Co. as the 
 continuance of the firm of C., W. & Co., as stated in cross- 
 int, 119 to Mr. Spink's testimony? The difference on the 
 hypothesis of the 1st part of the question, Mr. Spink, on page 
 140, testifies as follows : 
 
 " The balance at the credit of Wadsworth would be $6.66 
 " greater than that shown by the books. The balance at the 
 " credit of Cooley would be $781.87 greater than that showu 
 by the books. The balance at the credit of Farwell would be 
 $788.53 smaller." 
 
 On the 2d part of the question he testifies " that Wads- 
 " worth's balance, as compared with the books, would be 
 " $1,193.34 smaller. That of Cooley's, $781.87 greater. That 
 "of Farwell's, $411.47 greater." See exhibit No. 10, pages 
 173-4. 
 
 In the testimony of Mr. Spink we have presented distinct 
 computations upon as many distinct hypothesis, in order to 
 show that the said agreement of final settlement, at the time 
 it was made, was in fact a fair one to Wadsworth, and that it 
 was no more than justice to Cooley and Farwell. 
 
 We will call the attention of the Court to some of these 
 hypothetical illustrations : 
 
 The three first are upon the basis that the partners in the 
 firm of C., F. & Co. were bound to furnish capital as follows : 
 Cooley's cash and time capital, $160,000; Farwell's cash and 
 time capital, $80,000 ; Wadsworth cash capital, and no time 
 capital, $80,000. 
 
 1st. Upon the basis of Mr. Spink's computations in chief.
 
 145 
 
 2d. Upon the basis of the agreements of the partners, as 
 evidenced by the books and articles of copartnership, taken 
 together. And 
 
 3d. Upon the basis of Mr. Spink's computations in chief 
 charging the whole of the Wabash avenue building account to 
 Cooley, and leaving out the $5,000 loan to Farwell. 
 
 And Mr. Spink, in answer to cross 180, on page 217, presents 
 his answer, in which he states the pro rata amount of capital 
 each partner would have, under each hypothesis, and what the 
 balances of interest would be, as follows : 
 
 Under the 1st the proportions of capital would stand : 
 Feb. 1, '57, Cooley 51 Wadsworth 19 Farwell 29f per cent. 
 Feb. 1, '58, " 50 " 22 " 28 " 
 
 Feb. 1, '59, " 
 Feb. 1, '60, " 
 
 Feb. 1, '61, " 53 " 20| 
 
 Feb. 1, '62, " 52f " 21J " 26 " 
 
 Under the 2d they would stand as follows : 
 Feb. 1, '61, Cooley 50 Wadsworth 12 Farwell 37f per cent. 
 Aug. 1,'59, to 
 July 1, '62, Cooley 51f " 15 " 33 " 
 
 Under the 3d, they would stand as follows : 
 Feb. 1, '57, Cooley 51| Wadsworth 19 Farwell 29f per cent. 
 Feb. 1, '58, " 48 " 22 " 30 " 
 
 Feb. 1, '59, " 48 " 2l " 30 " 
 
 Feb. 1, '60, " 50 " 20 " 30 " 
 
 Feb. 1,' 61, " 50 " 20 " 30 " 
 
 Feb. 1, '62, " 50 " 20 " 30 " 
 
 Upon the 4th hypothesis, that the firm of C., W. & Co., 
 No. 2, was continued until the 1st of February, 1862, Mr. 
 Spink testifies, on page 139, cross 118, that Wadsworth, in 
 order to equalize his stock account with that of Farwell's, 
 would have to pay Farwell interest on $26,000. 
 
 Upon the 5th hypothesis, as to what was the ratio of capital 
 and profits between the partners, and as between Cooley, of 
 one part, and Farwell and Wadsworth, of the other part 
 leaving out the private accounts Mr. Spink testifies, on pages 
 138-9, cross 117, that Cooley had 53 per cent.; Wadsworth 
 and Farwell together, 47 per cent.; and as between Wads- 
 worth and Farwell, Wadsworth had 61 per cent, and Farwell 
 39 per cent. thus showing, upon their own hypothesis, that 
 
 19
 
 146 
 
 Wadsworth did not stand, and could not have stood, relatively 
 as well as Mr. Fanvell. To do so, he must have had twioo . 
 tne amount f capital to that of Farwell and he was far short 
 of this. In this calculation the private accounts were left out, 
 and Wadsworth's private account was much larger than his 
 partners', relatively. 
 
 Upon the 6th hypothesis, that the merchandise sold to Coo- 
 ley & Farwell leaving out those sold after January 9 and up 
 to February 1, 1862 were charged to them at 20 per cent, 
 above their cash value, and that the profit and loss account, 
 on the final division, was to be charged with such sum as 
 would leave the remaining assets of the same of relative value, 
 to be divided pro rata, according to the balance or amount 
 due to each on the 1st day of February, 1862 ; what would be 
 the relative losses of each partner, as compared with what 
 they would have severally sustained under the original articles 
 of copartnership ? 
 
 In answer to this Mr. Spink, on page 228 B, int. 3, testifies 
 that, on the hypothesis, Cooley Avould have borne a loss of 
 $75,988.24 ; on the bases of the articles, $73,169.12 making 
 a difference of only $2,319.12. On the hypothesis, Wads- 
 worth would have borne a loss of $42,000 ; on the basis of the 
 articles, $36,584.56 making a difference of only $5,515.44. 
 On the hypothesis, Farwell would have borne a loss of $28,250 ; 
 on the basis of the articles, $36,584.56 making a difference 
 of only $8,834.56. 
 
 The small differences between the partners as we have shown 
 them to be, upon the said agreement of settlement and the said 
 several hypothesis, is hardly worth contending for ; but it 
 shows that Wadsworth well understood the true condition of 
 the firm and the relative standing of the partners in their stock 
 and private accounts. The amount of this difference is so 
 small, when we consider the great consideration given by 
 Cooley and Farwell for it, in assuming all responsibility of pay- 
 ing over $400,000 of debts with the assets, and the release of 
 Wadsworth therefrom, it is absolutely insignificant. The de- 
 fendants do not care so much about the amount involved in 
 these differences, but they do care about the grave charges 
 against them contained in complainant's bill of complaint. 
 Money is of but little consideration to a man when put in com-
 
 147 
 
 petition with his honor and good name, and especially when he 
 has a requisite amount of money independent of any such 
 efforts. 
 
 It is these insolent, unmanly and false charges of deception 
 that brings Cooley and Farwell into this Court to defend their 
 hard-earned business reputation, not only in this city and the 
 Northwest, but in the eastern markets of our own and foreign 
 countries. They cannot consent to sit down and quietly sub- 
 mit to such wholesale assaults upon their characters for hon- 
 esty and truth. And a man that would, is not worthy of hav- 
 ing a character. In whatever light we may view this settle- 
 ment, and especially when viewed from the stand point which 
 the partners severally looked upon the transaction, and in view 
 of the situation and condition of our country, both civil and 
 military, at that time, it was a fair adjustment of the matters 
 between the said partners, and that the benefits and advan- 
 tages to be had and enjoyed by the complainant, as matters 
 then stood and appeared, were quite as great as that to either 
 Cooley or Farwell. 
 
 EIGHTH POINT. 
 
 Who were the partners in the said firm of C. N. Henderson 
 &Co.? 
 
 It would seem that sufficient has already been said upon this 
 question in our review of complainant's bill of complaint, under 
 the " 3d noted allegation," (see ante pages, from 17 to 39 in- 
 clusive,) to which we refer the Court for the evidence upon 
 this point and the remarks submitted in that connection. But 
 we desire to call the especial attention of the Court to the at- 
 tempt to charge fraud upon Cooley and Farwell, in the sale of 
 the interests of the firm of Cooley, Wadsworth & Co. in the 
 remaining assets of the said firm of C. N. Henderson & Co. 
 to Wadsworth, on or about the 1st of March, 1859. The posi- 
 tion assumed by complainant in his said bill, as to that occu- 
 pied by Farwell in that matter, and the part which complain- 
 ant claims Farwell took in negotiating said sale and transfer, 
 are not consistent one with the other. 
 
 1st. He claims that Farwell never was a partner in that 
 firm. 
 
 2d. That Cooley & Wadsworth, and not Cooley, Wads- 
 worth & Co., were the only partners in that firm.
 
 148 
 
 3d. He then alleges, that Cooley and Farwell sold to him, 
 by false representations, the interest of himself and Cooley in 
 the assets of C. N. H. & Co. 
 
 He does not even claim that either Charles N. Henderson or 
 Cooley, or himself, ever employed Farwell as his or their agent, 
 attorney in fact, or otherwise to act for them or either of them ; 
 yet he claims that Farwell, having no manner of interest in 
 said assets, and being wholly an outsider, assumed an interest 
 therein, and to be a member of said firm ; and notwithstand- 
 ing his assumptions were mere assumptions, he, the complain- 
 ant, recognized them as facts, and treated Farwell in that mat- 
 ter as though he was a partner, and that complainant, being 
 so completely under this hallucination, that he even signed 
 papers and receipts, written by himself, recognizing Farwell as 
 one of the partners in the said firm of C. N". Henderson & Co. 
 In this manner was the complainant (as he says,) imposed 
 upon, and made to believe against his absolute knowledge of 
 facts, that Farwell was a partner in that firm, and in this way 
 was this fraud committed upon him. If such was his imbecil- 
 ity and hallucination at that time, his friends most certainly 
 have done him a great wrong and injury, for neglecting to put 
 trustees over him in the management of his estate. 
 
 A second charge of fraud, or attempted charge of fraud, in 
 connection with the said sale and transfer of the said remain- 
 ing assets of C. N. H. & Co., on page 15 of bilf, is, that 
 Cooley and Farwell represented, at the time of said sale and 
 transfer, that complainant's account was, relatively, overdrawn, 
 has no support from the evidence. 
 
 Upon this point we desire to refer the Court to the evidence, 
 and our remarks submitted therewith, under the 3d and 10th 
 noted allegations of bill, ante pages from 17 to 50, and from 
 78 to 89. 
 
 From the examination of this testimony, it will be seen that 
 there is no evidence to sustain either of these pretended frauds. 
 The transcript from the Probate Court, introduced to show 
 that that proceeding ignored the partnership relation of Far- 
 well to the firm of C. N. H. & Co., amounts to nothing, as we 
 have before said, and for the reason that Farwell was not a 
 party to that proceeding, nor was the question as to who were 
 the partners before that Court, therefore, that proceeding can- 
 not be binding upon him.
 
 149 
 
 The law of partnerships is so clearly defined, that under the 
 testimony, there is no doubt upon the question, as to the fact 
 of Farw ell's being a partner in the said firm of C. N. Hender- 
 son & Co. That he had an interest in, or owned a part of the 
 capital of that firm there can not be any doubt. The testimony 
 states unequivocally, that Charles N. Henderson and Cooley, 
 Wadsworth & Co. paid in and made up the capital stock of 
 that firm ; and that Farwell was a partner in the said firm of 
 Cooley, "Wadsworth & Co. This fact then is established by 
 the proof beyond all question. That Farwell had an interest 
 in, and received a part of the profits, with the full knowledge 
 and consent of all the partners, of both of said firms, is equally 
 certain. As to the fact of his receiving a portion of said pro- 
 fits, there is no disagreement. The only question is, was he 
 entitled to it ? If he was a partner at the time in the said firm 
 of Cooley, Wadsworth & Co., and if said firm was the partner 
 of Charles N. Henderson in the firm of C. N. H. & Co., then 
 there can be no doubt as to his right to receive his said share 
 or proportion of said profits and capital in the manner he did 
 and was allowed to. That he had this right no one ought to 
 doubt, when we remember that the several partners in all of 
 their transactions of business in commencing suits at law and 
 in defending suits, recognized him to be a partner in that firm. 
 Not only so, but when we remember, that the testimony 
 informs us, that Charles N. Henderson and Charles M. Hen- 
 derson and John V. Farwell in commencing suits in the name 
 of said firm, upon their several oaths, affirm, during the exist- 
 ence of said firm, that he was a partner therein, and when we 
 remember that one of the said solicitors in this suit (John 
 Woodbridge, jr.) drew an affidavit and commenced a suit in 
 one of the Courts of Cook County, for and in behalf of said 
 firm, in the name of Charles N. Henderson, Francis B. Cooley, 
 Elisha S. Wadsworth and John V. Farwell, as plaintiffs and as 
 partners in that firm. Not only so, but when the final settle- 
 ment of this firm is had, Farwell is recognized by Wadsworth 
 himself as a partner, by treating with him in his negotiations 
 in the purchase of the remaining interests of Cooley, Wads- 
 worth & Co. in the remaining assets of the said firm of C. N. 
 Henderson & Co., and signs the agreement of dissolution with 
 Farwell ; not only so, but the books of both of the said firms 
 in all the entries relative to the capital stock and the division
 
 150 
 
 of the profits contained the most undoubted evidence that 
 Farwell was absolutely a partner. And it will be remembered 
 in this connection, that Wadsworth, in executing receipts and 
 orders to release mortgages in behalf of the said firm of C. N. 
 Henderson & Co., after he had purchased the said interest of 
 Cooley, Wadsworth & Co. in said firm's assets, recognized 
 Farwell as a partner. 
 
 As to what constitutes a partnership we will examine the 
 law governing such matters. In the case of Berthold vs. 
 Goldsmith, 24 Howard R. 536, the Court says, "Where- 
 " ever there is a community of interests in capital stock, 
 " and also a community of interest in profit and loss, then it is 
 " a clear case of actual partnership, both inter sese and of 
 " course as to third persons ; all the decided cases agree that 
 " it is seldom or never essential that both these ingredients 
 " should concur in order to establish that relation. A commu- 
 " nity of interest in the property without regard to profits will 
 " almost necessarily lead to the conclusion that partnership 
 " existed, and under some circumstances that conclusion will 
 " follow, although sale of the property for joint interest may 
 " not be contemplated. On the other hand, it is equally clear 
 " that there may be such a community of interests in the pro- 
 " fits without regard to loss, and without any community of 
 " interest whatever in the property as will establish that 
 " relation." See also Wood etal. vs. Valetta etal., 7 Ohio 
 State R. 172. 
 
 In the case of Bobbins vs. Laswell 27 Ills. 365, the Court 
 says, " When by agreement persons have a joint interest of 
 " the same in a particular adventure, they are, as between them- 
 " selves, partners, although some contribute money alone and 
 " others labor alone. If parties agree to share profits they are 
 " partners as to such profits. A written agreement as to divid- 
 " ing profits may be extended tacitly by the mutual under- 
 " standing of the parties, or by their conduct in relation to it, 
 " (on page 369) that the facts and circumstances or conduct 
 " of the parties speak louder than words. As beticeen them- 
 " selves we think there can be no doiibt of a partnership. It 
 " seems to be well settled, that when by agreement persons 
 " have a joint interest of the same nature in a particular adven- 
 " ture, they are partners inter se, although some may contri- 
 " bute money and others labor. The Court cites 4 Barn &
 
 151 
 
 " Co." Story on Part, sec. 15, Dobbs vs. Halsey, 16 John 
 R. 34.; see also Brown vs. Higinbotham, Leigh, Fa., R. 583. 
 This case shows many distinctive principles of the law of part- 
 nerships. 
 
 Before closing our remarks upon this point we desire to call 
 the attention of the Court to another feature in the transaction 
 of the sale of said remaining interest of the said firm of C., W. 
 & Co., in the assets of the said firm of C. N. H. & Co. 
 
 1st. Wadsworth buys the said interest of C., W. & Co., 
 and arranges for the payment of the same with said firm. 
 
 2d. At that time the estate of the said Charles N. Hender- 
 son, then deceased, owed the firm of C. N. Henderson & Co., 
 $7,470.59, according to the books of that firm and the testi- 
 mony of Charles M. Henderson. See evidence page 334 
 cross 107. 
 
 3d. The said estate likewise sell and transfer to Wads- 
 worth its interest in the said assets for the consideration of 
 $13,000. 
 
 4th. Then Wadsworth and said estate immediately there- 
 after by mutual agreement settle by arbitration the said indebt- 
 edness of said estate to the said firm of nearly $8,000, for the 
 small consideration of $939.15. 
 
 5th. Wadsworth thereupon executes a receipt for that sum 
 of money to the administrator of said estate, written by his own 
 hand and signed by himself, which is in words and figures fol- 
 lowing : 
 
 "CHICAGO, November 8, 1859. 
 
 "Received of Horace C. Gillette, Administrator of the es- 
 " tate of C. N. Henderson, nine hundred and thirty-nine dol- 
 " lars and fifteen cents, which is in full of settlement and pur- 
 " chase of the assets of the firm of C. N. Henderson & Co., 
 " which expired in 1855, being in full of all demands whatso- 
 " ever. 
 
 "CO-OLE Y, WADSWORTH & CO." 
 
 (See evidence on page 515.) 
 
 6th. On or about the 14th of April, 1864, nearly five years 
 afterwards, and nearly a year after the filing of complainant's 
 bill of complaint, and after the above receipt was called for 
 by Mr. Farwell of the said administrator, and during the cross- 
 examination of the witness Burke, this receipt was exchanged 
 for the following :
 
 "Received, this 8th day of November, 1859, of Horace C. 
 " Gillette, administrator of the estate of C. N. Henderson, de- 
 " ceased, nine hundred and thirty-nine dollars and fifteen cents, 
 " in full of award of Albert Keep, Wm. E. Doggett and James 
 " McKindley, arbitrators appointed to adjust the accounts of 
 " the late firm of C. N. Henderson & Co., to find the amount 
 " due Cooley and Wadsworth from the estate of C. N. Hen- 
 " derson, upon settlement of the affairs of said firm. I accept 
 " the aforesaid amount in full of all claims upon said estate on 
 " account of said firm. The firm of C. N. Henderson & Co. 
 " consisting of C. N. Henderson, Francis B. Cooley and Elisha 
 " S. Wadsworth, which commenced A. D. 1851, and expired 
 " in 1855. 
 
 " E. S. WADSWORTH, 
 "Assignee of the interests of Cooley & Wadsworth." 
 
 This substitution was on the 14th April, 1864. 
 (See evidence, page 520.) 
 
 The testimony of Charles G. Cooley and Horace C. Gillette, 
 the said administrator, reveals the fact that this last receipt 
 was written by John Woodbridge, Jr., Sol. for complainant, 
 some time during the taking of the testimony of said witness 
 Burke, and after Mr. Farwell called upon both Gillette and 
 said C. G. Cooley for the first receipt above set forth. (See 
 evidence, pages 515 to 529.) The said last and substituted re- 
 ceipt, upon its very face, bears the marks of being fixed up by 
 this skillful lawyer, but in disposing of the first receipt and 
 substituting the last in its place, both Wadsworth and his said 
 attorney forgot another paper which said Wadsworth filed in 
 the said Probate Court, in connection with the matters of the 
 said estate, which is in words and figures as follows : 
 
 " The estate of C. N. Henderson & Co. to Cooley, Wads- 
 " worth & Co., 1859, March 31 To 903,03. 
 
 " The above 903,03, is the balance as appears from papers 
 " per arbitration." BurJce. 
 
 " Received of Horace C. Gillette, the sum of nine hundred 
 " and thirty-nine dollars and fifteen cents, in full of Judgment 
 " vs. the estate of C. N. Henderson. 
 
 " Nov. 8, 1859. E. S. WADSWORTH." 
 
 (See evidence, page 527.)
 
 153 
 
 Complainant and his said attorney also forgot, at the said 
 time when they substituted the said last receipt in place of the 
 first, that complainant, on the 29th of January, 1863, had ac- 
 knowledged that Far well was a partner in the firm of C. N. 
 & Co., by executing the following orde;- : 
 
 " CHICAGO, January 29, 1863. 
 
 "Simeon Farwell, You will release the mortgage from 
 " James M. Kidd to you for our benefit. 
 
 COOLEY, WADSWORTH & CO., 
 E. S. WADSWORTH, for 
 
 C. N. Henderson & Co." 
 
 (See evidence, page 224, Exhibit No. 13.) 
 These were sad mistakes of both complainant and his said 
 attorney. They have doubtless found it exceedingly difficult 
 to manufacture testimony, and at the same time make it con- 
 sistent and harmonious Avith facts that have already transpired, 
 and which, in their haste and flutter of mind, were attendant 
 upon such efforts, and thus the foot-prints of fraud are readily 
 discovered on their part. 
 
 After all this evidence, and after having deliberately thrown 
 away the said sum of $7,470.50, which said sum said estate 
 was indebted to the firm of C. N. II. & Co., for the paltry sum 
 of $939.15, the complainant comes into this court and asks it 
 to give him the opportunity to get it back out of the defend- 
 ants, Cooley and Farwell. Contemplate for a moment the cool 
 audacity of such a prayer to a court of equity, under such a 
 state of facts. 
 
 It may be said that, though Farwell was a partner in this 
 firm, the said settlement of the matters of C. N. H. & Co. 
 should be set aside on the ground that Wadsworth was de- 
 ceived as to the value of the assets. There is no evidence 
 showing that he was deceived, or that he did not have all re- 
 quisite knoAyledge upon that matter. The evidence does show, 
 however, that when he purchased the interest of C., W. & 
 Co. therein, he acted solely upon his own judgment, and that 
 he took pains before his purchase, to inform himself in regard 
 to the value of said assets. On page 308, cross 31 and 32, C. 
 M. Henderson testifies that " said assets consisted principally 
 of notes and accounts, and that lie, (Wadsworth), asked his 
 opinion of their value, or of individual ones." If a court 
 20
 
 should attempt to set aside or reform every agreement made, 
 for the reason that one of the parties to the same did not ex- 
 ercise wise judgment, or for the reason that one of the parties 
 was mistaken in his judgment, it would find no lack of employ- 
 ment at least. But the main reason urged why this transac- 
 tion should be set. aside, is, that the said assets being princi- 
 pally notes and accounts, Mr. Wadsworth did not realize from 
 them as much as he expected. What his expectations were in 
 that regard does not appear, either by his bill or from the evi- 
 dence. How his expectations should have been very great, 
 judging from his mode of treating said assets, is as great an 
 enigma as is his bill of complaint ; for it does not appear that 
 he made the slightest effort to collect or secure the collection 
 of said assets. 
 
 When Mr. Wadsworth purchased them, he was a partner in 
 the boot and shoe trade with C. M. Henderson and had been 
 for some time. The assets were, at the time, and had been 
 since the decease of C. N. Henderson, in the possession of 
 Wadsworth and C. M. Henderson. They were the successors 
 of C. N. H. & Co., and were doing business in the same place 
 under the firm name of C. M. Henderson & Co. Mr. Burke 
 was their clerk. Let us see, from the testimony, what efforts 
 Mr. Wadsworth put forth to collect said assets. 
 
 Mr. Burke, on page 244, int. 7, testifies that, " I have had 
 control of them (said assets) since the spring of 1859. I have 
 received moneys in settlement of claims, and have conducted 
 the usual correspondence in relation to claims. (Int. 8.) Prior 
 to this, C. N. Henderson had control of them." 
 
 On page 252, cross-int'ys 22 and 23, he says : " I received 
 said assets from Elisha S. Wadsworth. At this time he (Wads- 
 worth) wished me to take charge of them and do the best I 
 could with them." 
 
 On page 201, cross-int. 80, he says. " that ' Exhibit B,' to 
 his deposition, on page 294, contains a list of the assets of the 
 firm of C. N. H. & Co." 
 
 On page 267, cross-int. 109 to 113, he testifies as follows: 
 
 " I do not know where the said debtors reside nor where 
 " they resided at the time I received the said assets, except as 
 " it appears on the books. I have never been to see any of 
 "the said debtors for the purpose of collecting or securing 
 " what was due from them or either of them. I know of only
 
 155 
 
 " one a claim against H. N. Ball which Was placed in the 
 " hands of an attorney. As yet, there has been no final settle- 
 " ment with said attorney. I am not familiar with his collec- 
 " tions, and don't know whether it has been collected or not, 
 " and don't know whether it has been sued or not. I know ot 
 "none (of said notes and accounts) on which payment has beeu 
 " secured, except those previously specified. (And these were 
 " secured by Cooley, Wadsworth & Co.) I don't recollect 
 " that I have tried to secure any of them." 
 
 From this testimony it is evident that Wadsworth, having 
 purchased the said assets, sat down, quietly, with his agent, 
 Mr. Burke, and made no effort to either collect or secure 
 the same. Is it surprising, then, that Wadsworth and his 
 agent, in this western country, or indeed in any country, should 
 fail to collect or secure the payment of the said assets? Are 
 debts to be collected or secured by sitting down and folding 
 your arms, and omitting to make or put forth efforts of any kind 
 in such direction ? Can Mr. Wadsworth complain after so 
 much carelessness for the space of five years ? Should he not 
 at least have shown some diligence, if not due diligence ? 
 Without such diligence, can he be permitted to come into this 
 Court of equity with the view of getting this Court, to assist 
 him in compelling Cooley and Farwell to share the losses at- 
 tending these assets with him, which losses he has brought 
 upon himself by his own neglect and carelessness ? To place 
 himself in a position to receive the aid of this Court, he must, 
 1st. Show that he was not only deceived by Cooley and 
 Farwell, but that he had no knowledge, or the means of inform- 
 ation upon the subject matter, about which he claims he has 
 been deceived. 
 
 2d. . He must show, in the matter of these peculiar assets, 
 (notes and account) that he has used all due diligence to col- 
 lect or secure them. 
 
 3d. If he fails in these or cither of these particulars, then 
 he is estopped in the matter of his complaint upon this branch 
 of the case. 
 
 But Mr. Wadsworth has sought to make it appear that 
 Cooley and Farwell knew all about the said debtors, and that 
 they knew that said assets were worthless. His proof, how- 
 ever, fails to meet his effort. He desires the Court to infer, 
 that because Cooley and Farwell had a general acquaintance
 
 156 
 
 with dry goods merchants in the country, that therefore they 
 must have known all the customers of the said boot and shoe 
 house of C. N. H. <fc Co. And in this, as in other parts of his 
 bill, he shows his inconsistency ; for it will be remembered that 
 by his bill of complaint he has charged that he had all the per- 
 sonal acquaintance and influence with the customers of all 
 these firms, from 1849 to 1857, and that Cooley and Farwell 
 had neither acquaintance or influence, and that, therefore, he 
 would have the Court believe that he sold to them his said ac- 
 quaintance and influence ; but now he changes the matter and 
 attempts to make it appear that he was not acquainted with 
 these customers of C. N. H. & Co., although they were made 
 at the time when he, in his bill, claimed that he had all the ac- 
 quaintance and influence with and over them, and that Cooley 
 and Farwell had none. But let us refer to the testimony upon 
 this matter. 
 
 On pages 488-9, Mr. Kerr testifies, "that he has examined the 
 said ' Exhibit B,' to Burke's deposition, and the books and bills 
 receivable of the firms of C., W. & Co., Nos. 1 and 2, and C., 
 F. & Co., and finds only thirty-two names on said books that 
 were contained in said ' Exhibit B,' and that of said 32 names 
 there was only 12 that were indebted to either of said firms, 
 and that their indebtedness amounted in the aggregate to only 
 $4,297.90." 
 
 This deposition of Mr. Kerr's was taken in May, 1864. Since 
 that time, to wit, in October, 1865, the deposition of Edward 
 Nevers has been taken upon the same subject. Before refer- 
 ring to this evidence, it may be well to remind the Court, that 
 in the life-time of C. N. Henderson, he placed some of the 
 said assets into the hands of C., W. & Co. to collect, and 
 among them was the claims against J. M. Kidd, M. P. Watson, 
 Galbrath & Ducat and John Green & Co. 
 
 In answer to the question, what had been collected by Mr. 
 Farwell on any of the debts contained in said * Exhibit B,' Mr. 
 Nevers testifies, on page 4 of appendix, int. 5, " they were col- 
 lected as follows: Of John Green & Co., September 15,1855, 
 $722.50; of James Kidd, Jan. 31, 1863, $55.47, June 24, '64, 
 446.36 ; June 3, 1865, $466.36. The note is fully secured. Of 
 these collections, $932.72 Avas paid over to Wadsworth. There 
 are three more payments of $466.35 each, due Wadsworth on 
 the Kidd note, which are secured. On Galbrath & Ducat there
 
 157 
 
 was paid May 2d, 1864, $160.96; Oct. 19, 1864, $104; Jan. 1, 
 1865, $105.25. The balance of $200, is secured. 
 
 In answer to the 6th int., he testifies, " that of the persons 
 and firms named in said ' Exhibit B,' C., W. & Co., Nos. 1 
 and 2, had claims against M. P. Watson, G. E. Hart & Brother, 
 Marcus Sperry and N. Slaight, all of whom have paid their 
 debts to said firms," and he says, " that he has examined and 
 cannot find that they had any claims against any others named 
 in said ' Exhibit B.' " 
 
 It will be seen from this testimony, that Cooley, Wadsworth 
 & Co., Nos. 1 and 2, collected and secured every claim they 
 had against the persons and firms named in said Exhibit B, to 
 Mr. Burke's deposition. Had Mr. Wadsworth used the same 
 diligence which Cooley and Farwell did, he, too, might have 
 been successful. Debts are collected and secured by efforts 
 and diligence. They cannot be neglected for months and years 
 without loss. And no man is worthy to receive pay in this day 
 and generation, who refuses or neglects to put forth his ener- 
 gies, or to bestow his care upon debts due him. If he neglects 
 them, it is his own fault, and he alone should be required to 
 suffer from such neglect. 
 
 NINTH POINT. 
 
 It is claimed, under the several original articles of copart- 
 nership, that Mr. Farwell was under obligations to take charge 
 of the books and accounts, and make annual statements ; arid 
 that both Cooley and Farwell, by means of the entries in the 
 books, deceived the complainant as to the real condition of the 
 firms, and of the stock and private accounts of the partners. 
 
 By reference to the articles forming the firm of C., F. & Co., 
 it will be seen that Mr. Farwell was only to have " a general 
 supervision of the books, collections and sales " of this firm ; 
 and he was not to " render to each party a just and true state- 
 ment of the condition of the firm and the amount due to each," 
 until the termination of the firm. And when he had done this, his 
 obligation in that regard was discharged. He was not required 
 to make or enter any statement or statements upon the books 
 of the firm. This was no more his duty than that of Wads- 
 worth or Cooley. But we have before shown (and it is un- 
 necessary to repeat the ^argument), that the complainant, by his 
 statements in his bill, as well as by the evidence, was fully 
 acquainted with the entries in the books; and that he
 
 was 80 acquainted with them, at the time lie mad<* the 
 said purchase of the said interest of C., W. & Co., in the 
 said assets of C. N. H. & Co., and at the time he made the 
 said final agreement and settlement of all matters on the 21st' 
 of January, 1862, and he also had the said statement, marked 
 by Mr. Spink as " Exhibit A," (which of itself acquainted 
 him of the change of interest upon his deficit of capital 
 and of the said division of said merchandise in the ratio of 
 profits.) The evidence convicts him of having absolute knowl- 
 edge of all the facts in the premises before he made said 
 agreement. Of the said division of the goods in that ratio, 
 his own bill confesses that he knew of it on the 21st day of 
 January, 1862, and on the 1st day of February, 1857. (See 
 complainant's bill, pages 22, 23, 25 and 26.) The conclusion 
 that he did know about the books of account, of the charges 
 and credits, of interest on deficit and surplus of capital, and 
 of the division of goods in the ratio of profits, and that his ' 
 private account was relatively largely overdrawn, is most clear 
 and conclusive, as we have hereinbefore seen. 
 
 In this connection, and before proceeding with the argu- 
 ment under this division of the case, it is necessary that we 
 examine the question as to the ratio or proportion the several 
 partners would be entitled to draw from the funds of said firm 
 of C., F. & Co. as all of them had transcended their limits 
 in that respect. And 
 
 1st. We say that the partners, finding that said limit (of 
 $4,000 to each partner during the term) was insufficient to 
 meet the demands of complainant's personal obligations, they 
 therefore allowed Wadsworth to draw what the firm could 
 possibly spare from its business providing that Cooley and 
 Farwell could also draw with him in the ratio of profits, and 
 that the said Wadsworth agreed with them that they might so 
 do and thus this new rule for individual drafts was estab- 
 lished between them, in this firm. 
 
 2d. This rule is one of equity, and, in this case, one of 
 agreement. But in the absence of any agreement, where 
 partners far exceed the proscribed limit fixed by them origi- 
 nally, the Court ought, and we think will, adopt it. The re- 
 spective rights of the partners could not, in any other way, be 
 so equitably adjusted.
 
 159 
 
 Mr. Spink testifies, on page 87, cross 56 : "It would be fair 
 " (in such a case) that each partner should draw in the same 
 " proportion as that of profits." And he says, on page 87, 
 cross 57, "that, taking Mr. Wadsworth's private account on 
 "the 21st of January, 1862, in the firm of C., F. & Co., as a 
 " basis of drafts upon the funds of that firm, Fawell, to be 
 " equal with Wads worth in his draft, would have been entitled 
 " to draw $24,763.37 more than he did draw." On pages 111 
 and 112, cross 88, he testifies "that, according to his (Spink's) 
 " computations in chief taking the amount drawn by Wads- 
 " worth from February 1st, 1857, to the 21st of January, 1862, 
 " (the drafts being in the ratio of profits) as a basis Cooley 
 " and Farwell would have been entitled to draw $66,452.57 
 " over and above the amount which they did draw," to be 
 equal with Wadsworth. On page 112, cross 89, he testifies 
 that, " in the firm of C., W. & Co., No. 2, Cooley and Far- 
 " well would have been entitled to draw $16,436.71 more than 
 " they did draw, on the basis of Wadsworth's drafts, from that 
 " firm.'l On page 112, cross 89, he says : " On the basis of 
 u the books as to capital, Wadsworth's deficit of capital and 
 " over drafts would amount to $55,764.32. On the basis of 
 "my (Spink's) computations in chief, Wadsworth's deficit of 
 " capital and over drafts, added together, would amount to 
 " $34,553.89." 
 
 It will also be remembered, in this connection, that Cooley 
 was entitled to draw twice as much as Wadsworth, and Farwell 
 an equal amount. The justice of drawing in the proportion or 
 ratio of profits is seen from the fact, if another rule was al- 
 lowed, either partner could not only draw his entire interest 
 derived from profits, but he could also, in that way, draw out 
 his entire capital, and defeat the object of the partnership by 
 withdrawing all his interests therefrom. The proof, then, that 
 the complainant was relatively largely overdrawn, is positive. 
 
 But in returning to the discussion of the original proposi- 
 tion, let us suppose that Mr. Farwell had made up and stated 
 the several accounts ex, parte upon the books, as complainant 
 claims he did, and as it was his duty to do under the original 
 articles at the close of said copartnership ; and suppose said 
 complainant, having full and free access to said books of ac- 
 count (as Mr. Leiter testifies he had), settles all copartnership 
 matters and transactions upon the basis of such statements
 
 160 
 
 and entries in said books how can Tie escape such a settle- 
 ment ? Even though he should prove that he failed or omitted 
 to examine said books how can he, even then, escape it? 
 By no law can he escape it. By no law can he be relieved 
 from it. Upon this point we desire to call the especial atten- 
 tion of the Court to the following authorities to wit : 
 
 In the case of Heartt vs. Corning, 3d page R., page 571, the 
 Court holds, " that it appears from the statement of com- 
 " plainant's bill, that it was one of the stipulations in the 
 " agreement of copartnership, that Smith should make up and 
 " state^ the partnership accounts annually, on the 1st of January 
 "in each year. Under that stipulation, even if Smith made 
 "up and stated the accounts exparte, in the absence of Heartt, 
 " it was the duty of the latter to look into them within a rea- 
 " sonable time, and point out the errors, if any existed therein 
 " or he must be considered as having acquiesced in the correct 
 " ness of the accounts as stated on the books of the Jirm, to 
 " ichich books both parties had access during the existence of 
 " the copartnership. In stating the accounts of partners as 
 " between themselves, the entries on the partnership books, to 
 " which both partners have had access at the time when the 
 " entries were made, or immediately afterwards, are to be 
 " taken as prima facia evidence of the correctness of those 
 " entries ; subject however to the right of either party to show 
 " a mistake or error in the charge or credit. And vouchers 
 " for the specific items can never be required except under 
 " very peculiar circumstances." See also Willis vs. Jarnegan, 
 2d Atk. 251 ; Murray vs. Tolland, 3d John ch. 569. Wild vs. 
 Jenkins, 4, page 481, 1st Story Equity Jur. Sec. 526. 2d 
 Daniels ch. pr. 762-763; Freeland vs. Heron, 7 Cranch 147; 
 Codman vs. Rogers, 10, Pickering 112. 
 
 Murray vs. Tolland, 3 Johnson ch. 574-5, the Court holds 
 to the same doctrine as above and adds, " that there was 
 " an account current stated and admitted. There is no pre- 
 " tence of any fraud or imposition practiced upon him, or 
 " that he had not a perfect freedom of action in discussing 
 " and settling the account. It was founded upon mutual con- 
 " cessions. If a person will enter, even upon a hard bargain, 
 "with his eyes open, observes Lord Hardwicke (2d Atk. 251) 
 " equity will not relieve him, unless he can show fraud or some 
 " undue means iised." See Jessup vs. Cook, 4 Halst. R.,page 
 436 ; LaMalaine vs. Case, 2d P. A. Browns R. 128.
 
 161 
 
 Wilde vs. Jenkins, 4, page cli. 404, is n strong case and in 
 point. The Court says : "The statement of the aecounts at 
 "the lime appears by the books to have been carefully and 
 " deliberately made * * * * and all accounts between 
 "the parties settled; *..?>.*,* I am also satisfied 
 
 " from the examination of the books ai;d from the other evi- 
 " deuce in the case, that both parties then understood it to be 
 " a full and final adjustment of the partnership concerns up to 
 " that time. It must therefore require very strong and conclu- 
 " sive evidence of error or 'mistake to induce the Court to open 
 " the accounts or go back beyond the adjustment thereof in 
 "June, 1827. 
 
 " The practice of opening accounts (which the parties thcm- 
 " selves have adjusted and who best understood them), is not 
 " to be encouraged. And it should never be done upon a 
 " mere allegation of errors, supported by doubtful, or even by 
 " probable testimony only ; especially where the parties to the 
 " settlement stood upon terms of perfect equality, so that there 
 " could be no pretence of fraud or imposition practiced by one 
 " party upon another. In the language of a distinguished 
 " Judge the whole labor of proof lies upon the party objecting 
 " to the account ; and errors which he does not plainly establish 
 " cannot be supposed to exist." See Baker vs. Biddle, Bald- 
 win C. C. Rep. 418; Slee vs. Bloom, 20 Johnson R. page 660, 
 f>87-688 ; 5 John ch. page 366, 385 ; 1 Daniels ch. Practice 
 424-5 and note ; 2 Daniel ch. Prae. 762-4 ; 1 Story Equity, 
 Jur. Sec. 523; 1 Story Equity, Jur. Sec. 525, 526-7. 
 
 Chambers vs. Gold win, 9 Vesey, 269, 270, 274, wherein the 
 Court says : As to accounts settled " they must be considered 
 " as settled, not to be opened, but to be surcharged and falsi- 
 " tied. Page 274. 
 
 " It is also a settled rule of law, that when there have been 
 " errors in an account settled by the parties, that the errors 
 u may be surcharged and falsified, but the account itself is not 
 " to be re-opened. This distinction must be kept distinctly 
 " in. view." 
 
 " Where one has leave to surcharge and falsify the burden 
 " of proof is on him who has the liberty so to do ; if he can 
 " show an omission for \vhich ihere ought to be a credit it will 
 " be added. 2 Daniels ch. Practice 764-."). 
 
 21
 
 " This is an important distinction, because, where an ac- 
 " count is opened, the whole of it may be unraveled, and the 
 " parties will not be bound by deductions agreed upon between 
 " them on taking the former accounts ; but when a party has 
 " liberty to surcharge and falsify, the onus probandi is always on 
 " the party having the liberty, for the court takes it as a stated 
 " account, and establishes it ; but if the party can show an omis- 
 " sion for which there ought to be credit, it will be added, 
 " which is a surcharge ; or if any wrong charge is inserted, it 
 " will be deducted, which is a falsification. This must be done 
 
 "'by proof on his side." 2 Daniels ch. Prac. 764-5. 
 J " r?rdA>C 
 
 It is also held that, "sakiKe errors are never allowed to be a 
 
 " ground for opening an account." (Page 228). "It is said that 
 " the withholding of credit for interest on balances due, &c., 
 " from year to year, amounting to a large sum, makes the de- 
 " fendant liable. The question is not whether there Avas an 
 <c omission of credit, but whether his omitting to credit it in 
 " the statement of balances Avas fraudulent on his part. (Page 
 " 229.) It is a common doctrine in equity, that in the making 
 " 6f a bargain, what is equally known to both parties, need not 
 " be stated in order to make the bargain a fair one. The sheet 
 " exhibited as the basis of the proposed compromise showed 
 " the balance from year to year in the hands of the defendant. 
 " Was it a concealment to omit giving credit for interest? If 
 " there had been any agreement with Hubbard that Brooks 
 "should be accountable for interest, the omission to credit 
 "would have been fraudulent, (pages 229, 230), but if there 
 " were no such agreement, such omission would be justifiable, 
 " even if it should eventually turn out that he was chargeable, 
 " if he believed that he was not accountable. It required no 
 " skill in accounts or examination of books to perceive this 
 " omission of interest. 
 
 " Although the settlement may not be avoided, yet the plain- 
 " tiff ought to be let in to surcharge and falsify. (Roberts vs. 
 " Kuffiii, 2 Atk. 112, and page 247.) 
 
 " The result of the whole is, (inasmuch as defendants have 
 " admitted errors and promised to pay, &c.), that the settle- 
 " ment made may be confirmed, and the plaintiff allowed to 
 " surcharge and falsify the account." (Page 250.) Farnam 
 vs. Brooks. 9 Pic. 212. See also Union Bank vs. Knapp, 3 
 do., P. 114.
 
 163 
 
 In the case of Choppedelanc vs. Dechenaux, 2 Curtis it. B. 
 R. 115, or 4 Crouch, page 009, the Court says : 
 
 "No practice could be more dangerous than that of opening 
 " accounts which the parties themselves have adjusted, on sug- 
 "gestion supported by doubtful or by only probable testimony. 
 " But if palpable errors be shown, errors which cannot be mi.s- 
 " understood, the settlement must so far be considered as made 
 " upon absolute mistake or imposition, and ought not to be ob- 
 " ligatory on the injured party or his representatives, because 
 " such items cannot be supposed to have received his assent. 
 " The whole labor of proof lies upon the party objecting to 
 " the account, and errors which he does not plainly establish 
 " cannot be supposed to exist." 
 
 In the case of Halhed vs. Marke, 3d Swanton, 445-7, the 
 Court says : 
 
 " This bill is filed to set aside an agreement, and a release 
 " founded on that agreement, for alleged fraud and imposition 
 " in obtaining it. In all cases of this kind the fraud and im- 
 
 O 
 
 " position must be made out to the court by proof \ and it does 
 " not appear that there was any actual fraud or imposition by 
 " either of the parties to this agreement and release ; for both 
 " were of full age. and capable of transacting. So that all 
 " the fraud and imposition must arise from the oircumstancefs 
 "of the thing itself. Plaintiff alleges, 1st, that defendant set 
 " up title in himself in two houses, whereas he was a trustee 
 " only. 2d, that he made a pretence to claim, under the cus- 
 " torn of London, a consideration of the release, when in fact, 
 " the portion he got was far more than lie could have under 
 " the custom of London. (Page 447.) Upon the whole evi- 
 " dence, I am of opinion there was some trust between the 
 " parties, but not on the original purchase. (Page 448.) The 
 " bill must be dismissed." (Page 449.) 
 
 In the case of Gordon vs. Gordon, 3 Swanston 474, the Court 
 says: " The case turns upon the point, did James Gordon know 
 " that there had been a private marriage, whether he thought 
 " it valid or not. If he did not, then had there been a private 
 " statement to him to that effect. Though he did not believe 
 " the statement, still he was bound to communicate it to his 
 " brother. If he can show that the plaintiff had the same 
 " knowledge, the case will take another turn. The probabilities 
 " are that James did knoAV this fact, or had reason that there
 
 104 
 
 "had been .1 private marriage. If such were the ease, the 
 " parties did not meet on equal terms ; and such being the 
 "case, the court will give relief. But if the plaintiff had a 
 " knowledge of the fact, and exercised his own judgment on 
 " the legal eft'ects of it, this case will be one of that class in 
 " which the court, seeing that there had been full disclosure on 
 " both sides, and that the parties thought proper to comprom- 
 " ise, and settle what each shall hereafter claim, and so the 
 " agreement stands supported, though proceeding on mistake. 
 (Page 475.) The case of Lewis vs. Pead, 1 Vesey, Jr., 19, 
 asserts the same doctrine. Loyd vs. Passinghane, Coopers 
 ch. R., 155 do. 
 
 The object of requiring Farwell to render a statement of the 
 account between the copartners, &c., was that Wadsworth 
 might know of what the account consisted, and whether it con- 
 tained the proper items. 
 
 Everything in the account stated was open to criticism and 
 correction at the time. If no objection was made to it, it was 
 acquiesced in, and the parties preceded further tipon the state- 
 ment as a basis for future eperations, &c. In the case of Union 
 Bank vs. Knapp. 3 Pickering, page 113, Court says: "A 
 stated account is an agreement by both parties that the ac- 
 count is true." See Truman vs. Hurst, 1 T. R., 42. " It is 
 sufficient if lie prove the account stated." Bartlet vs. Emery, 
 1 T. II. 42 iu notes. "An account between partners shall be 
 taken only from the time it was last balanced." 
 . It will be remembered that the said original copartnership 
 agreements of the taid three firms were imlike in their several 
 requirements in regard to the duties they severally imposed 
 upon Mr. Farwell in the matter of statements of the condition 
 of said {inns. In the 1st firm of C., W. & Co., Mr. Farwell, 
 " at the end of each year, was required to render to the part- 
 ners a just and true statement of all profits made and losses 
 sustained, which was to appear in the private stock account of 
 each." 
 
 In the 2d firm of C., W. & Co., Mr. Farwell was to "see 
 that an accurate account was kept of all expenses, losses and 
 profits ; and at the end of each year, render to each of the 
 partners a just and true statement of the same, which was to 
 appear iu the private stock accounts of each on the ledger."
 
 181 
 
 
 In the firradf 0., F. & Co., Mr. FarWell, " at the termination 
 of the contract, Avas to render to each party a just and true 
 statement of the condition of the firm, ami the amount due to 
 each partner from the assets." 
 
 From an inspection of these agreements, it will be seen tlmt 
 Mr. Farwell was not required to make out or cause to be made 
 out a statement of the condition of the firm of C., J^. & Co., 
 and render the same to his partners until the close or termina- 
 tion of the partnership; and even then, lie was not required,- 
 (as in the former copartnership agreements,) to enter the same 
 upon the books of the firm, or any one of them. 
 
 This firm, by mutual agreement, was dissolved ten days be- 
 fore the time or limitation fixed by the said original copartner- 
 ship agreement; hence there was no obligation at the time of 
 the making of the said agreement of the 21st of January, 1862, 
 resting upon Mr. Farwell to furnish his partners with even a 
 statement of the firms' condition, or that of the stock and 
 private accounts ol the partners. Had this firm continued un- 
 til the close of its term as originally fixed, he would have been 
 required to perform this duty. But before that time arrived, 
 his partners (Wadsworth and Cooley,) came in and said " we 
 will not wait for the original term of this firm to expire before 
 we dissolve it, nor will we wait for you to make up a statement 
 for our benefit at the time specified for its termination in the 
 original articles of agreement ; and we propose to look into the 
 condition of the firm, and into the stock and private accounts 
 of the several partners for ourselves, and now, that is, the 
 partners one and all, will act in committee of the whole and 
 perform the duties specially assigned to Mr. Farwell to perform 
 ten days later, or at the termination of the contract." And 
 Mr. Farwell agreed to it ; and the three partners were together 
 (as Mr. Leiter testifies) in private consultation and investiga- 
 tion two weeks before the said 21st day of January, 1862, and 
 then dissolved said firm and made said agreement. When the 
 duty of making up said agreement Avas so taken away from 
 Mr. Farwell, all and every of the partners in that matter stood 
 upon equal ground and assumed equal responsibility. There 
 was no more obligation upon Mr. Farwell than there Avas upon 
 Mr. Wadsworth and Cooley. Mr. Wadsworth, in connection 
 with his partners, took upon himself the reponsibility of dis- 
 solving said firm before the time fixed by the original agree-
 
 riient, and he, with Cooley and Farwcll, must bear alike the 
 responsibility of their mutual agreement to dissolve the said 
 firm before the day of its limitation, and of the responsibility of 
 the investigations that said premature dissolution imposed alike, 
 upon each of the partners. 
 
 But Mr. Farwell did, in fact, do more than he was required 
 to, by the terms of the agreements of formation and dissolu- 
 tion of the said firm of C., F. & Co. We will turn to the 
 evidence and see what he did do. 
 
 On page 574, int. 15, Mr. Leiter testifies, "that annual state- 
 ments were made of the merchandise and money drawn by 
 each member of the firm ; each partner's statement was given 
 to him." 
 
 To the 16th int. he replies, " that on the books of C., W. <fc 
 Co., the moneys drawn by each partner were placed in the 
 back part of the ledger, also his portion of the net profits of the 
 year. Upon the books of C., F. & Co., the moneys drawn by 
 each individual member of the firm were placed to his account 
 in the back part of the ledger, the net profits were placed to a 
 profit and loss account in the same place in the ledger. 
 
 Mr. Spink testifies that the back part of the ledger is the 
 proper place for these accounts. In addition to these entries, 
 Mr. Leiter, in answer to 17th int., says : " There appeared on 
 the books of C., W. & Co. the amount of capital stock fur- 
 nished by each member of the firm; and on the books of C., 
 F. & Co. the capital that was to be furnished, or the capital of 
 the firm. I herewith append a copy of said statements, marked 
 Exhibit No. 1." See pages 598 to 603, of evidence. See, also, 
 Mr. Leiter's answer to the 6th cross, on page 584. 
 
 On page 573, I 12, Mr Leiter testifies that " Mr. Wadsworth 
 requested of me, at one time, a statement of his accounts in 
 the several firms, covering his entire interest therein. I gave 
 him an account showing the moneys he had drawn in the dif- 
 ferent years, and of his proportion of the profits, so far ns they 
 were divided upon the books, and also the stock paid into the 
 several firms. On the books of C., F. & Co., profit and loss 
 account was not divided, but I gave him the aggregate. This 
 was in I860 or 1861." 
 
 [By reference to the testimony of Mr. Lieter, and Simeon 
 Farwell, it will be seen that Mr. Leiter succeeded Simeon Far- 
 well as book-keeper in 1856, and continued in such employ- 
 ment until the close of the firm of C., F. & Co.]
 
 On page 624, I 12, Mr. Simeon Farwell testifies that, "Dur- 
 ing the time I was book-keeper I made out statements, at the 
 end of each year, of the private account of each member of 
 the concern one on the 28th of February, 1852; one on the 
 28th of February, 1853; one on the 28th of February, 1854, 
 and one on the 1st of February, 1856. They were passed to 
 each member of the firm, each receiving his own account." 
 On page 626, I 23 and 24, he testifies that " there was a gene- 
 ral balance sheet made out at the end of each year, for the pur- 
 pose of ascertaining the net profits of each year, for the inspec- 
 tion of the partners. It contained an abstract of the ledger, 
 showing what the assets and liabilities were, including the stock 
 account." On page 627, cross 4, 5 and 6, he says : " I think 
 1 have seen Wadsworth examine his private account. I can- 
 not answer as to Avhen, or how often ; but I am quite sure that 
 I have seen him do so." 
 
 On page 577, I 34 and 35, Mr. Loiter testifies that " there 
 was a trial balance made out quarterly, and also at the end of 
 each year, after the books were balanced, which trial balances 
 could be seen at any time, by reference to them. The last 
 trial balance sheet shoiced the condition of the books of the 
 firm after the different profit and loss account's had been 
 closed into stock t and also the private account of the partners 
 charged up to stock" 
 
 On page 177, 1 79, Mr. Spiuk testifies that "the entries on page 
 448 (of ledger) represent the stock accounts of the firm. Those 
 on page 449 of ledger, represent the stock accounts of Cooley 
 and Wadsworth. Those on page 450 that of Farwell. The 
 last three accounts, taken together, balance the entries to stock 
 account." On page 214, cross 169, he testifies: "The stock 
 accounts of the partners balance the entries to the general 
 stock accounts. The private stock accounts show the division 
 of the general stock account between the several partners. 
 Thus the general account is a basis for the others; yet they 
 cannot be posted from it. ANY ONE KNOWING THE SHAKES 
 
 OF THE SEVERAL PARTNERS, MIGHT EASILY MAKE UP THE 
 PRIVATE ACCOUNTS FROM THE GENERAL, inasmuch as the 
 
 general stock account, beside capital and profits, shows the 
 draft made by the several partners for their own use." On 
 page 211, cross 15, he testifies : " In the day-book of 0., W. 
 <fc Co., No. 1, on the first page of the same, I find memoranda
 
 168; 
 
 of $30,000 capital being paid in, in notes and merchandise. 
 The stock ledger of that firm shows corresponding entries as 
 to the stock of Cooley, Wadsworth and Farwell in the same. 
 W. II. Phelps then had $8,000 of stock in that firm. There was 
 no account opened Avith him on the stock ledger ; but on 
 the 15th of May folloAving, the day-book shoAvs that, at that 
 date, WadsAvorth bought out his interest and paid in, as addi- 
 tional capital, his note of $3,000. The stock ledger, at that 
 date, shoAvs entries corresponding Avith those last named. The 
 same day-book, under date of February 1, 1862. shews entries 
 to stock account for amount transferred, at that date, to 
 Wadsworth's credit in the neAV firm, and charge for the same 
 in the old of $2,148.44, Avhich charge is posted to Wadsworth's 
 stock account. It also shoAvs the charges made at that date on 
 the private stock ledger to the several partners, for interest and 
 losses. It further shows transfers of balances of accounts at that 
 date, to the neAV firm. These last entries ar;j all in Far well's 
 handAvriting. 1 also find entries of the transfers made May 2d, 
 1857, of $8,878.64 to Cooley, and of $3,278.87 to Wadsworth, 
 Avhich I have already explained Avere applied on their stock 
 notes in the second firm. The same maybe said of the entries 
 of $9,422.26 and $9,424.97, Avhich were also applied on the 
 stock notes. Under date of February 28, 1854, I find entries 
 charging stock with the amount of merchandise transferred 
 and applied, as heretofore explained, on the stock notes given 
 to the second firm, and the entries in the private stock accounts 
 correspond with the divisions of merchandise betAveen the 
 several partners, as entered on the day-book. In the day-book 
 of Cooley, Farwell & Co., under the date of February 2d, 
 1857, I find an entry, in the book-keeper's handwriting, of 
 'merchandise debtor to stock for $115,369.81', which was the 
 amount of goods transferred from the previous firm. Under 
 that entry a memorandum in pencil, in Mr. FarAV ell's hand- 
 writing, to post in private stock account one-half of the mer- 
 chandise to Cooley, and a quarter each to WadsAvorth and 
 Farwell. On page 306 I found the entries Avhich I have ex- 
 plained in answer to direct interrogatory 130, and for Avhich 
 there are corresponding entries in the private stock ledger." 
 
 In answer to the 161 and 164 cross int'ys on page 212 and 
 213, he says, " that the original entries under the settlement of 
 January 21st. 1862, of the three firms were made upon the
 
 169 
 
 day book oi each of the said firms with full explanations ; and 
 that the entries to the private account of Wadsworth and the 
 amount of goods transferred to C., F. & Co. as capital, and 
 the amounts of collections from the assets of C., W. & Co., 
 No. 1 and 2, were so transferred as capital and shown in their 
 proper place on the books of C., F. & Co." This evidence 
 shows, that Far well did more than his said obligations under 
 the said copartnership agreements required him to do. By the 
 terms of the said agreement forming the firm of C., F. & Co., 
 he was not required to make any statement, or any entry 
 upon any of the books of that firm showing the condition of 
 the said firm, or the condition of the stock and private accounts 
 of the partners at the time said agreement of dissolution and 
 settlement was made and entered into as aforesaid ; yet the 
 evidence shows that he made annual and even quarterly state- 
 ments of all those matters, and entered all the transactions of 
 all of the said firms in the books for the inspection and benefit 
 of the said, partners. It is generally and rightfully conceded 
 that it is impossible to prove a negative; but it must be 
 admitted that we have come nearer to doing so, in showing by 
 evidence that Wadsworth must have had knowledge of the 
 true condition of all of the said firms, and of the entries in the 
 books, and of the stock and private accounts of the several 
 partners, and particularly of his own, and of the manner in 
 which said accounts were made up, than was ever before 
 attained. It is for Mr. "Wadsworth to first substantiate his 
 charges of deception and fraud, and his alleged or pretended 
 want of knowledge, and his inability to have informed himself 
 upon or in regard to said matters, before he can require us to 
 produce proof to rebut his said charges. But notwithstanding 
 his failure so to do, we have proved beyond all possibility of 
 doubt that his said charges are utterly untrue. It will be 
 remembered that there always is and must be in all copartner- 
 ship relations matters existing and constantly transpiring 
 between the partners of a private nature, which require new 
 agreements varying in some or many particulars the original 
 agreement. This is more frequent with houses that are trans- 
 acting a large business, and especially so during a financial 
 crisis. These new agreements are made upon some sudden 
 turn of their business affairs, and they arc made in private and 
 no writing memorandum is made of them. The business results 
 
 22
 
 170 
 
 of these agreements are entered upon the books of account in 
 the several accounts they effect, and this is the only evidence 
 outside of the partners of the same ; and this is one of the prin- 
 cipal reasons why all entries in a firm's books of account, and 
 especially to the stock and private accounts of the partners are 
 taken by a Court of equity as the evidence of private or confi- 
 dential agreements between the partners, as we have hereinbe- 
 fore shown. All the original copartnership agreements form- 
 ing said three firms were not only made in private, but they 
 were reduced to writing by the parties themselves. All their 
 business affairs as touching their capital stock and private 
 accounts were managed and conducted with the utmost 
 secrecy. Upon these matters their confidential clerk had no 
 authentic information. All their new agreements that affected 
 or changed their original agreements were made in like secrecy. 
 
 The firm of C., F. & Co., was organized in secret and the 
 relative rights and interests of the partners were studiously 
 kept from their clerks and bookkeeper. By their original co- 
 partnership agreement forming this firm they expressly provide, 
 as we have before seen, that not even the condition of the firm 
 and the relative condition of the partners therein were to be 
 made known by Mr. Farwell by a statement even to the part- 
 ners until the close of the copartnership. And this statement 
 (when made up by Mr. Farwell at the termination of the firm 
 and presented to the partners), was a full discharge of his spe- 
 cial duty. He was not required to place the same upon the 
 books. This duty was no more his than Wadsworth's or 
 Cooley's. This said clause was in fact inserted at the request 
 of Mr. Wadsworth, and for the reason, that he desired to keep 
 his real relative position in the firm as to its capital and profits 
 a secret (if possible) from the clerks and book-keepers. Hence 
 Mr. Leiter replies to him when he asked about the accounts 
 and if there was any double or wrongful charges, " no, unless 
 it is the matter of interest charged to him." And the testi- 
 mony of Mr. Leiter shows that the partners were all very reti- 
 cent, and that they held private conferences and were in secret 
 session some two weeks before, and immediately before the 
 date of the said agreement of dissolution and settlement. 
 
 From the statements of complainant in his bill, and from the 
 books of account, and from all the evidence in the case, and 
 from the law of the case, there can then be no doubt, 1st,
 
 m 
 
 That Waclsvvorth made said agreement of the 21st of January, 
 1862. 2d. That he made it after a full knowledge of the facts 
 and the entries in the books, including the said division of 
 goods, and the said charges and credits of interest. 3d. That 
 Wadsworth had free access to the books, and also had written 
 statements. 4th. That the alleged statements of Cooley and 
 Farwell to him were fully sustained by the books of account. 
 5th. That the recital in the said agreement was true in sub- 
 stance and fact. 6th. That complainant's account was rela- 
 tively largely over-drawn at the time he made said agreement; 
 and, therefore, 7th, his said agreement with his partners, made 
 on the 21st of January, 1862, must stand as a full settlement 
 of all their copartnership matters : and in fact there remains 
 to be done, between the said partners, under said agreement, 
 only the division of the remaining assets, according to the 
 pro rata amount due to each. 
 
 When there has been an accounting had between partners, 
 and they have settled their private and partnership accounts 
 upon such accounting after examination and deliberation, such 
 accounting and settlement concludes the parties thereto ; and 
 no court will disturb it, except upon the most positive and un- 
 equivocal evidence of deception and fraud. The parties to 
 such a settlement are presumed to be acquainted with all the 
 facts and considerations governing the parties at the time, 
 which, if such settlement were set aside and a new accounting 
 had, could not be made. A settled account is audited by the 
 parties, its correctness acknowledged, and all the considera- 
 tions between the parties recognized and adjusted, which, in no 
 other way, could be brought in by proof. Positive and con- 
 vincing proof of fraud or error, that was at the time of the 
 settlement unknown to one or more of the parties, not open to 
 his information, must be shown, before a court of equity will 
 either set aside the settlement, or open it to be surcharged and 
 falsified ; and the burthen of such proof is upon him who as- 
 sails the settlement. See Hearott vs. Corning, 3d page 568 ; 
 Caldwell vs. Leiber, 7 page 483; Allen vs. Coit, 6 Hill 318; 
 Millondon vs. Sylvester, 8 La. 262 268 ; Chapidilane vs. De- 
 chemaux, 4 Crouch 306 ; Wild vs. Jenkins, 4 Page 481 ; Lang- 
 don vs. Roane, 6 Alaba. 518. 
 
 Upon this point, Chief Justice Marshall remarks : " No 
 " practice could be more dangerous than that of opening ac-
 
 172 
 
 " counts which the parties themselves have settled, supported 
 " by probable or doubtful testimony." See, Desha et al, vs. 
 Smith, 20 Alabama 747, 752 ; Coifing vs. Taylor, 16 Ills. 47] ; 
 Coffing vs. Taylor, 18 Ills. 426. 
 
 The law imputes to a person the knowledge of a fact, of 
 which the exercise of common prudence and ordinary diligence 
 would have apprised him. Peters vs. Goodrich, 3 Conn. 146- 
 150 ; Sigourney vs. Munn, 6 Conn. 333. 
 
 Collyer on Partnership, sec. 121, says : " The effect of a dis- 
 solution as inter sese is to put an end to all transactions, inter 
 sese as partners, except for the purpose of taking a general ac-" 
 count and winding up the concern." 
 
 TENTH POINT. 
 
 What was the relative position of these partners, one to the 
 other, under their agreements and under the evidence, at the 
 time they formed the said three several firms, that induced such 
 copartnership relations ? 
 
 Complainant claims that his money, influence and credit, east 
 and west, with customers, and in the eastern markets, was on 
 his side, the moving consideration ; and that the labor and ser- 
 vices of Cooley & Far well, was the sole moving consideration 
 on their side. Upon these questions, raised by bill and answer, 
 we have already considered under the evidence in our review 
 of complainant's bill, which brought us to the conclusion that 
 the considerations that induced the formation of the said sev- 
 eral firms, was the actual money and services rendered to, or 
 was agreed to be rendered to each firm and its business by 
 each of its partners ; and that the money which Wadsworth 
 agreed to furnish, as capital, was the sole consideration for his 
 membership, and that beyond this he was of no use or advan- 
 tage to either of said firms. For the evidence and argument 
 upon this question, we refer the court to our review of com- 
 plainant's bill of complaint, under the said second and fourth 
 noted allegations. See ante pages from 10 to 17 inclusive, and 
 especially to ante from pages 39 to 50 inclusive. 
 
 At the only time when Wadsworth's credit and influence, (if 
 he had any), was needed, to wit, from 1857 to 1861, the evi- 
 dence shows them to have been greatly weakened, if not 
 wholly destroyed ; and that he in fact was on the very verge 
 of bankruptcy, and that Cooley and Farwell were obliged to 
 sustain the credit and the business of the said firm of Cooley,
 
 173 
 Farwell & Co. alone, and without his aid, and were obliged, 
 
 * * O 7 
 
 for this purpose, to resort to loans of money and the 
 credit of their personal friends during the time men- 
 tioned. If, at the commencement of the said first 
 firm, Wadsworth had such vastly superior credit and in- 
 fluence over customers, and manufacturers and wholesale mer- 
 chants at the east and west, as he claims he did, he failed, (as 
 we have before shown by the evidence), either to use it or even 
 to retain it for the benefit of said firms, or either of them. 
 
 In the two last firms his services were wholly released to 
 him, and in the first, after the first six months, he did not pre- 
 tend to render any to it; and he does not even pretend that he 
 ever rendered any services to either of said firms. Mr. Phelps, 
 who was a partner in the first firm for a short time, testifies, 
 that the only reason why Wadsworth was admitted into the 
 same, was the amount of money he put into the firm, and that 
 the capital of the firm was ample for its business. His great 
 y" influence and credit " was not even thought of, and formed 
 no part of the consideration for his admission into that firm. 
 What other consideration could there be ? Wadsworth per- 
 formed no services, and the capital was sufficient for its busi- 
 ness. Why, then, was Wadsworth admitted into said firms, or 
 either of them? Why! it was the money the money alone, 
 which he, at the time, agreed to pay into the capital stock. 
 What had he but money ? What did he render to the said 
 firms, or either of them, but his money capital ? In the last 
 firm he did not furnish but about half the sum he agreed to do. 
 What acquaintance has complainant proved that he had with 
 the customers of said firms ? None whatever ! What credit 
 and influence has he proved that he had and actually rendered 
 to said firms, or cither of them, at any time in the eastern mar- 
 kets ? None whatever ! What little influence (if any,) he had 
 at the time of the organization of the said first firm, he did not 
 retain ; for the evidence states that he paid no attention to the 
 customers, and that this part was all done by Farwell and the 
 clerks. He was, then, in fact, a partner in said firms simply 
 because of the money he agreed to pay into the several firms 
 as his portion of the capital. Why was John V. Farwell a 
 partner in the first firm, with a right to one-eighth of the pro- 
 fits? Because he paid into the firm the sum of $1,000, and
 
 174 
 
 rendered his services in the manner prescribed by the articles 
 of copartnership to said firm, biat chiefly, because of the value 
 of his services. 
 
 In the firm of C., W. & Co., No. 1, Cooley and Wadsworth's 
 services, whatever they were, were to balance each other, and 
 they furnished an equal amount of capital and shared the 
 profits and losses in equal proportions. Not so with Farwell. 
 He shared one-eighth of the profits and losses, although his 
 cash capital was only one-thirtieth of the whole amount. He 
 was in the firm then, principally, because of the value the said 
 firm placed upon his business capacity and influence. 
 
 In the firm of C., "W. & Co., No. 2, the equality between 
 Cooley and Wadsworth was no longer maintained or admitted. 
 Cooley exceeded him in his cash capital by $10,000, and he 
 had made himself so influential that his services were admitted 
 and allowed to be worth the sum of $30,000 to said firm, and 
 that of Farwell's a like amount. 
 
 In the firm of Cooley, Farwell & Co., Cooley's and Farwell's 
 services and influence were admitted and allowed to be worth 
 $60,000 each, instead of $30,000, as in the former firm. The 
 position of the several partners in the several firms were, rela- 
 tively, distinct in each firm. This we have before shown and 
 illustrated, but, inasmuch as this constitutes the grand differ- 
 ence or question in controversy, it is better to say more than is 
 necessary, rather than omit to say what may be necessary. 
 
 In the firm of Cooley, Wadsworth & Co., No. 2, Cooley 
 paid in $50,000, or half of the capital and his services, 
 and received half of the profits. Wadsworth paid in $40,000 
 and no service, and had one-fourth the profits. Farwell 
 paid $10,000 and his services, and had one-fourth the pro- 
 fits. Thus it will be seen that Farwell's cash and time 
 capital was taken to be just equal to Wadsworth's cash cap- 
 ital, and that Wadsworth's capital and that of Farwell's 
 cash and time capital combined were just equal to Cooley's 
 cash and time capital. Now, suppose that the capital and 
 profits of this firm amounted to $200,000, and that it was all 
 in money at the close of the copartnership, when it is proposed 
 to form a new firm under the name of C., F. & Co., with a 
 capital of $200,000, to be paid in as follows : Cooley, cash, 
 $100,000 and his services ; Wadsworth, cash, $80,000 and no 
 services; Farwell, cash, $20,000 and his services; half of the
 
 175 
 
 profits to Cooley, and the balance equally between Wadsworth 
 and Fanvell. Thus it will be seen that Farw ell's cash and 
 service capital in this firm are equal to Wadsworth's cash cap- 
 ital, and that the cash and service capital of Farwell and the 
 cash capital of Wadsworth, combined, are just equal to the 
 cash and service capital of Cooley, as in the first firm ; but 
 here the similarity between them or their like relative position 
 ends. In the first firm the value that was placed upon the ser- 
 vice capital of Cooley and Farwell, each, was $30,000. In the 
 second firm their services are vahied at $60,000 each, or double 
 that in the first firm. 
 
 Now suppose, in making up the capital of the said firm of 
 C., F. & Co. to $200,000, (half of the cash and service capital 
 by Cooley ; $80,000 cash by Wadsworth, and a quarter of the 
 cash and service capital by Farwell, as aforesaid,) and they 
 propose to draw, as they, respectively, have a right to, from 
 the said assets in the said old firm, and the same amounting to 
 $200,000, as aforesaid, to make up, as far as it will, the capital 
 of the new firm. Cooley 's share thereof is $100,000, and he 
 puts it in ; Wadsworth's share thereof is $65,000, and he puts 
 it in, and he finds himself short in the sum of $15,000 ; Far- 
 well's share is $35,000, and he, from it, puts in his share of 
 $20,000, and he has a surplus of $15,000. Thus we see that 
 the relative position of the several partners have changed; and 
 the question is, in what way and from what cause ? Mani- 
 festly, from the cause that the value of service capital has been 
 changed in the later firm from that in the former. In the first, 
 the services of Cooley and Farwell were valued at $30,000 
 each ; in the last, their services are valued at $60,000 each. 
 
 But take another illustration, and as a basis say that the 
 profits of C., W. & Co., No. 2, were $200,000 
 
 Cooley's cash capital 50,000 
 
 Wadsworth's cash capital - 40,000 
 
 Farwell's cash capital 10,000 
 
 Making, in the aggregate - $300,000 
 
 Upon this basis, how would the relative rights of the partners 
 
 stand, were they to form the new firm of C., F. & Co., with 
 
 a capital of $200,000, and draw from the funds of the former 
 
 firm to make up their respective shares to-wit :
 
 ' 176 
 
 Cooley's cash capital, $100,000, and his services. 
 
 Wadsworth's cash capital, 880,000, and no services. 
 
 Fanvell's cash capital, 620,000, and his services. 
 
 Mr. Cooley's share of such assets would be, for his 
 Capital $50,000 
 
 Profits .... . . 100,000 
 
 Making - 8150,000 
 
 Thus he would have a surplus of - - $50,000 
 
 Farwell's share of assets would be as follow* : 
 
 His share of capital - 810,000 
 
 His share of profits - 50,000 
 
 Making $60,000 
 
 He would have a surplus of - - 840,000 
 
 Wadsworth's share in said assets would be : 
 
 Capital $40,000 
 
 Profits - --- - - 50,000 
 
 Making - - $90,000 
 
 His surplus would be only - $10,000 
 
 From these illustrations it must be plain that the relative 
 position of the several partners in the respective firms changed 
 when the new firm was formed ; therefore, upon no reasoning 
 can the complainant maintain the predicate of his bill, " that 
 he should stand relatively as Avell in the last firm as in the first." 
 It is remarkably strange that he and his solicitors should have 
 made so gross an error in the predicate of the bill. This illus- 
 tration throws light upon what the complainant calls errors in 
 the book-keeping of Mr. Farwell. The error (if there was one) 
 was his own, or that of his solicitor ; and he, and not Farwell, 
 should be held responsible for it. It was an error of figures, 
 or computation, and it may be that the head only produced it. 
 Mr. Wadsworth was undoubtedly made to believe that this 
 trap would catch that is, that the capital stock in the firm of 
 C., F. & Co. would make Wadsworth's capital stock relatively 
 the same as that of his partners. To a careless observer this 
 theory looks plausible, for he would not stop to take into con- 
 sideration the service capital allowed to Cooley and Farwell 
 by the said respective firms. But a moment's reflection and 
 study of said original copartnership agreements will satisfy the
 
 m 
 
 most stupid mind that what "MY. W:uls\vortli calls Mr. Farwell's 
 error, Mas rather liis o\vn mistake upon the relative rights ami 
 interests of the said respective partners in the said three linns, 
 under their said several agreements as to the cash and service 
 capital contributed to e:;rh iirin, and the value of such service 
 capital as determined by the said several agreements in each 
 tirm. It would hot bo only a great injustice, but simply ab- 
 surd, to make Cooley ami Farwell responsible for such an error 
 of complainant. Both Wads\vorth and. his solicitor ignored 
 the mathematical fact that, relatively, Fanvell was rising and 
 he- falling in the several scales of their copartnerships, and that 
 that \vas caused from the fact that Farwell received profits for 
 his service capital as well as for his cash capital. 
 
 lielbre dismissing the discussion of this point, I desire to 
 direct the attention of the Court to "Exhibit No. 15," to Mr. 
 Spink's deposition on page 225 of evidence, in connection with 
 complainant's boastful allegations that he was the partner of 
 influence, credit and money in all the said three several firms, 
 and that Cooley and Farwell were Avithout either money, credit 
 or influence. The said "Exhibit No. 15" is in words and 
 
 figures following : 
 
 " CHICAGO, March 17th, 186-J. 
 
 ' ]>EAII Sin I want you to lend me thirty-five hundred dol- 
 li lavs, so that I can have it by the 20th of this month. You 
 " may think it strange that I should ask you, but it is life or 
 ' death almost with me. ])o, if it is anyway consistent, let me 
 " have it. Please write 011 return mail. I will reimburse you 
 " out of the first collections of the proceeds of old firm debts. 
 "Yours, &c., E. S. WADSWOKTII. 
 
 "F. B. COOLEY, Esq." 
 
 1 >y referring to the original letter, on file with the evidence 
 in this case, it will be seen that the printers made a mistake in 
 the amoitot of the sum the complainant asked Cooley to "lend 
 him," 1 and thai it was the sum of " thirty -Jive thousand dollars,"" 
 instead of thirty-five hundred, as printed. But suppose the 
 sum he asked Cooley to " I nJ liim" 1 was but *:],,500, as printed. 
 "Does this help him in the position he has assumed of weultli, 
 credit "/<.</ inJltn-n<-< / Is a man of <'<<//(//, credit <m<l injht- 
 , >!<<> driven to liie straits of "Itfeor deuth" fort-he want oi'the 
 laltrv Sinn of ^ thirty-jive /u>H<f,-/. </ol!<i,'< "'' If he was the 
 man of ''\vealth, credit and inHuence" he pretends to have
 
 ITS 
 
 been, and Cooley was as destitute of these as he pretends he 
 was, would complainant, one of the oldest citizens of Chicago, 
 have written to Cooley, who resided in New York, Legging in 
 such importunate terms to " lend him" the small amount of 
 " thirty-Jive hundred dollars 1 '' to assist him in his extremity, 
 as he states, because "it is life or death almost with him?" 
 On the other hand, if by this letter he asked Cooley to " lend 
 him" the sum of "thirty-five thousand dollars" because " it 
 was life or death with him" then his credit, and his influence, 
 and his money were not, in his own estimation at least, equal 
 to that of Mr. Cooley's. 
 
 Whichever way he chooses to turn this letter of his, or 
 whatever construction he may seek to place upon it, to bolster 
 up his absurd allegations claiming all the wealth, credit and 
 influence of these three firms it strikes him like cannon balls. 
 His own conscience may have become so encrusted, like the 
 monitors of the ocean, that no penetration (to his vision) has 
 taken place ; but to an observer, looking on, his encasement 
 is riddled and shattered to pieces by his own bullets. 
 
 ELEVENTH POINT. 
 
 It is assumed on the part of complainant, that after the pur- 
 chase and sale of the said merchandise on the 21st day of 
 January, 1862, and the charging of the same at invoice price 
 to the private account of Cooley and Farwell under the said 
 agreement of that date, the said transaction in fact created a 
 debt due the firm from Cooley and Farwell, and that they are 
 bound before the said final division of the said " remaining 
 assets " to pay the said agreed value of said merchandise into 
 the said firm of Cooley, Farwell & Co., and then the said part- 
 ners were to divide the said moneys so paid in, as so much 
 more of, or so much added to the said " remain///// (iwfn" 
 between them, "pro rata, according to the amount due to each." 
 
 If the said agreement had not provided otherwise there 
 would be force in this position, or rather, that the balance 
 under the former agreements should be first equalized. I5u1 
 agreements change natural results or consequences. I>y the 
 said agreement! of the 21st of Jan., '62, the relative interest > 
 of the several partners were determined by charging to the 
 private account of Cooley and Farwell the said merchandise 
 at the invoice price, and by charging to the complainant's pri-
 
 179 
 
 vate account the said &10,000, received by him, and then 
 viding, after the debts were paid that the " remaining assets " 
 should be divided between them " pro rata, according to the 
 amount due to each.' 1 '' 
 
 Before making of the said agreement, complainant was 
 largely overdrawn upon the books, and short in his capital stock 
 subscribed by him, relatively to that of his partners. But the 
 complainant at this time, although he was relatively overdrawn 
 and short as aforesaid, yet he did not occupy the position or 
 liability of an ordinary debtor to the firm of which he was a 
 member ; and because he was a partner, he could not have 
 been sued at law by the firm for the amount of his said over- 
 draft and deficiency. After the making of the said agreement, 
 and after the said respective changes had been made as afore- 
 said, the partners' several accounts were relatively changed. 
 Before, complainant's account was relatively largely overdrawn 
 and his capital stock relatively much smaller than his partners. 
 Now, after the making of the said agreement, and the charge 
 of the said goods to the private account of Cooley and Farwell, 
 amounting to $161,041.89, and the charge of $10,000 to com- 
 plainant's accounts, Cooley and Farwcll's private accounts were 
 i-elatively overdrawn as compared with his. Not only so, but 
 an actual consideration passed from Cooley and Farwell to the 
 complainant by said agreement for making up their several 
 accounts in this way, to- wit : Cooley and Fanvell undertook, 
 with the assets of the said firm, to pay all its debts, amounting 
 to about $430,000, and all the expenses of collecting or con- 
 verting the said assets for that purpose into money, and released 
 the complainant from all care, labor and responsibility about 
 that matter. When these debts and expenses were paid by 
 Cooley and Farwell, then " the remaining assets were to be divided 
 between the partners, pro rata, according to the amount due to 
 each" That is, the private accounts of the partners were to be 
 closed by adding to that of C. and F. the said amount of $161,- 
 041.89 and to that of complainant, the said amount of $10,000. 
 TJiis determined the relative shares or interests of the several 
 partners in or to the said "remaining assets." It will be ob- 
 served that by this agreement, the capital <nul profits of the sev- 
 eral partners are no longer distinct one from the other. They 
 are by it merged into one common interest and are no longer 
 separable ; and this constitutes another of the considerations of
 
 ,sv/cV tt'/rccaicnf. And such Mas f,hc manner or mode adopted 
 by tlic partners to determine tln'ir wvcrc/l shan-* or ///// /vx/.v, 
 rel(itn'ely,in the xdid " remaining assets " The said " remain- 
 ing assets" were, as a matter of course, to be divided between 
 the partners, to-wit: "pro ra.fa according fo tltf fnnu?- <l>n 
 to each" How could said " remai'in</ */.<>< v* " In- divided 
 otherwise under the said agreement V Their relationship as 
 partners no longer existed, and the linn's name was to be used 
 only by C. and F. in closing its business. The partners' sev- 
 eral accounts had been adjusted and made up by an agreement 
 under their hands and seals, and some of the reasons and con- 
 siderations from one to the other were stated in said agreement ; 
 to-wit, the payment of the liabilities and the expenses of close- 
 ing the business ; the closing of the profit and loss account ; and 
 finally, the providing for and prescribing how the "remaining 
 assets " should be disposed of between them. As we have 
 before said, the original capital of the several partners, both, 
 cash nnd service, and the relative share of each in the profits, 
 and the several partners' private accounts Avere all merged by 
 this said agreement into hotchpotch, or into one common mass, 
 denominated by the partners in their said agreement ''remain- 
 ing assets." The " remaining assets " were no longer capital 
 and profits, nor as debts of one or more of the partners to the 
 firm, as under their original copartnership agreement; but they 
 are " remaining assets," to be " divided between the several 
 partners, pro rata, according to the amount due to each," as 
 made up, determined and agreed upon by all the partners in 
 their said final settlement; therefore, we say, 
 
 _M. The relation of the said partners to one another was 
 such, that though we admit for the sake of the argument, that 
 there was no final adjustment or settlement of their affairs, MY. 
 Wadsworth's said overdrafts would not make him a debtor of 
 the linn in the ordinary or common law sense, or meaning of 
 the term debtor. 
 
 This is evident from the fact that one partner, as we have 
 before said, cannot sue his copartner at common law. The 
 account so- overdrawn by one partner, is taken to be an item 
 in his account, to be adjusted either by agreement or by law 
 in the final division of assets, to-wit : 1st, to be taken out of his 
 ]>rofits, if any, and if not, then 2d, out of his capital, if he has 
 any. Upon this point we desire to call the attention of the
 
 Court to the following authorities: In ihe case oi (,'oilin vs. 
 Taylor, 1<> Ills., page 471, the Court holds to the following 
 doctrine : 
 
 " Both sociu to have regarded a tvansfer of Coffiney's inter- 
 " ests in the effects of the Jinn- as including his liability to 
 " account for the moneys advanced to him by the tirm, or in 
 " other words, withdrawn by him from it. This \vas not true 
 " in law. It would be but an item in the account in adjusting 
 " the liability of one partner with the other upon the terms of 
 " the partnership, after its dissolution and settlement of its 
 " aftairs with third persons and to sustain this position, the 
 " Court cites the Bank of England vs. Richardson, IS Eng. Ch. 
 " 169, 170; Wilson vs. Soper, 13 B. Monroe II. 411; Snairall 
 " vs. O'Bannons, 7 B. Monroe 11. 608." Story on Part. Sec. 
 ;j48, and note^a, See also C. Chadsey vs. Hai-rison, 11 Ills. 156. 
 
 TWELFTH POINT. 
 
 The complainant, in his bill, alleges various grounds on 
 which he insists that the relation between complainant and 
 Cooley and Farwell was such as to create a trust and confi- 
 dence on the part of Cooley &> Farwell, or a fiduciary rela- 
 tionship ^between them and him, which, by the principles of 
 equity, imposed extraordinary duties upon them, toward him, 
 in resrard to the said firm's business. In answer to this, we 
 
 o * 
 
 desire and have only to call the attention of the court to a 
 case in point, and which reaches the merits of the discussion 
 now being had. The facts and the law of this case being so 
 similar, in many respects, that the whole case should be read 
 and considered, to wit : Farman vs. Brooks, 9 Pickering, page 
 212 to 250, inclusive. Also, see Godard vs. Garble, 9 Rice, 
 169 S. C. ; 1st Christy's Elfr. Digest, page 932, sec. 11. 
 
 In the case of Ogden vs. Astor, 4th Sanford's N. Y. R, the 
 court says : " The fiduciary relation of Trustees to cestuey qiie 
 trust subsists between surviving partners and the representatives 
 of the deceased." But this relation never exists between gen- 
 eral and surviving partners. The complainant has failed to in- 
 troduce any evidence in support of this allegation, and the' 
 law is too plain in its bearings against his said claim to demand 
 a further or other consideration of this point. 
 
 THIRTEENTH POINT. 
 
 Ill the absence of evidence to prove that Cooley and Far- 
 well, or one of them, made false representations to Wadsworth 
 as to the value of the notes and accounts or assets belonging
 
 182 
 
 to the iinn of C. N, Henderson & Co., ami in the absence of 1 
 evidence to prove that "Wads worth relied upon such represen- 
 tations, and that he did not have other means of information, 
 there is no ground for the relief from his contract in that 
 matter. 
 
 The evidence to prove fraud in this matter has utterly failed, 
 biit for all the evidence there is upon this question and the law 
 governing the same, we refer to the discussion already had un- 
 der the 1st, 2d, 4th, 5th, 8th and 9th Points. (See ante pages 
 118, 123, 127, 130 and 157.) 
 
 FOURT K EXT I [ PO IXT. 
 
 In the absence of evidence to prove great inadequacy of the 
 price given by Cooley and Farwell for the said merchandise 
 under the said agreement of the 21st of January, 1862, there 
 is no ground for setting said sale aside. For the evidence 
 touching the value of the merchandise, we beg leave to refer 
 to ante pages G2 to 78 inclusive, under the head of the Eighth 
 Allegation. As to the law governing this point, we desire to 
 call the attention of the court to the following cases : Osgood 
 vs. Franklin, 2 John, ch. 1 ; Law vs. Blanchard, 8 Vesey 133 ; 
 Underbill vs. Howard, 10 Vesey 200 ; McArtree vs. Engert, 
 13 Ills. 248. 
 
 FIFTEENTH POINT. 
 
 When a bill charges upon another fraud, and that by reason 
 thereof it is further charged that complainant was induced to 
 make a certain agreement, and the fraud so charged is the sub- 
 stance or the basis of the bill, and he fails to make good his 
 charge by proof, his bill must be dismissed, for the equities 
 which he seeks depends upon the fact of actual fraud proven. 
 This doctrine is most fully recognized in the case of Mount 
 Vernon Bank vs. Stone, 2 R. I. 129. 
 
 In this case the bill charges, "Thai Stone fraudulently con- 
 cealed the books of account from the plaintiffs, and removed 
 the same from the office and place of business, and had re- 
 ceived large sums of money belonging to the plaintiffs, and 
 fraudulently retained portions of the same, and appropriated 
 the same to his own use, &c. ; and that Stone in the accounts 
 he rendered to the plaintiffs from time to time hath made false 
 and fraudulent representations of his conduct and proceedings 
 that he hath received smaller sums of money for interest 
 than he did in fact receive as such agent, and that by means of
 
 183 
 
 such false atid fraudulent representations hath deceived the 
 plaintiffs, and hath obtained from them a certain release and 
 discharge of a portion of said account and surrender of the 
 bond executed by said Stone for the'faithful discharge of the 
 duties of his agency." 
 
 Percurium. " After a careful examination of the evidence 
 in relation to the charges of fraud, we feel bound to say that 
 the plaintiffs in our judgment have failed to prove them, and 
 the only question which remains to be considered, is, whether 
 the bill ought to be dismissed, or sent to a master for an ac- 
 count, with liberty to the plaintiff's to prove any error or mis- 
 take in the settlement which has heretofore been made, and in 
 the receipt or release given and executed by them, and also to 
 prove any matters of claim not embraced by said settlement. 
 This would be the ordinary course of the Court on a bill by 
 the principal against his factor for an account. The difficulty 
 in pursuing this course in the present case arises from the 
 charges of fraud contained in the bill. 
 
 " We think these charges of fraud constitute the principal 
 ground of relief set forth in the bill, and we cannot permit the 
 plaintiffs, after having failed to prove tho fraud, to fall back on 
 the allegation that the defendant has not accounted, and has 
 not produced and delivered his books of account, and to treat 
 the case as if no allegation of fraud was made" The rule in 
 relation to this subject is stated by the court in the case of 
 Price vs. Berrington, 7 Eny, Law and Equity, R. 2GO, to wit : 
 
 " When the bill sets up a case of actual fraud, and makes 
 flu it the ground of the pray erf or relief, the plaintiff is not en- 
 titled to a decree by establishing some one or more of the facts 
 quite independent of fraud, but which might of themselves 
 create a case under a totally distinct head of equity from that 
 which would be applicable to the case of fraud originally 
 stated. We thinJi the nde is founded in the highest justice 
 \ plaintiff ought not to be permitted, considering that a Court 
 of Chancery is always open to allegations of fraud, to speculate 
 upon the chances of relief upon that ground, and failing in 
 that to fallback upon different ground." See also Forraby vs. 
 llobson, '2-2(1 Enycli, It. _'.->5 ; Glasscott vs. Long, do. 310. 
 
 The object of Mr. Wadsworth, as stated in his bill, is to set 
 aside the said agreement of the 21st of Jan., 18(52, on the ground 
 
 1 ' > O 
 
 of fraud, and thereby to re-open all matters of partnership in
 
 184 
 
 order to be let into a flail or original accounting with his part- 
 ners. On the '26th page of his bill he brings all his statements 
 ;iiid allegations to a point and into a single paragraph, in 
 which he, in the most emphatic manner, charges fraud, and 
 makes the fraud so charged the basis or substance of his bill. 
 It is as follows : 
 
 "That his said partners, by means of the erroneous entries 
 " in said firms' books, and by representing said books to be 
 correct, induced your orator to enter into the aforesaid agree- 
 " ment of January 21st, .V. D. lsii2, and that he in fact signed 
 "said agreement under an erroneous impression of his rights 
 " in the premises, induced ft;/ ?/;' (ifoi-exni'I <-<n:<lition <>f xi<l 
 "lii'iii** l>ook$) and by the representation* of his said partners, 
 " and he does and will insist that for the condition of said 
 " books, and for the consequent error into which he fell, his 
 " said partners arc wholly responsible ; and that sold agree- 
 ' :i nt lu.xt nfi'iDC-d is a fraud njiun ;/onr orator^ and is wholly 
 " void." 
 
 On page 19 of bill, he further alleges, " That he was in- 
 "duced to sign the above writing, (to wit, that of Jan'y 21st, 
 ' ! ^<>2,) and to enter into the stipulations thereof solely by the 
 " representations of said Cooley andFarwell above mentioned ; 
 " that he knew nothing as to the relation which his private ac- 
 " count bore to the private accounts of his partners, except as 
 "they informed him, and that ;mless he had believed the aforc- 
 " said statements of his partners he never would have assented 
 " to the aforesaid arrangement ; that by reason of the writing 
 '" last aforesaid, the said Cooley and Far well possessed tliem- 
 " selves of all the property of the linn of Cooley, Farwell & 
 Co." 
 
 These allegations of fraud are of the same nature of 
 in said Rhode Island case, and they form (as in that case) the 
 foundation of the bill of complaint. Without these charges 
 of fraud, "Wads worth has not laid a foundation for the relief 
 prayed in his bill of complaint. This being so, and the evi- 
 dence to sustain these charges (as in that case) having ut- 
 terly failed, the said complainant cannot take any relief under 
 his bill.
 
 185 
 
 SIXTKKNTH POINT. 
 
 The said clause in the said agreement of the 21st of Jan- 
 uary, 1SG2, to wit: " Whereas, E. S. Wai Is worth has largely 
 overdrawn liis account, ttc.," was not tlie re) >re mentation of 
 Cooley and Farwell tohi;n, for it was the united judgment of 
 1 lie three partners, or the declaration of the three partners; 
 and they and each of them are to be presumed from this decla- 
 ration to have known all about their several stock and private 
 accounts. It is to be presumed that the books were before 
 them, and that they and each of them had examined them, and 
 that this declaration was made upon their and each of their 
 personal knowledge of all matters stated and referred to in 
 said agreement. 
 
 It is true that complainant directed Mr. iSpink, in his com- 
 putations in chief, to make up the several stock and private 
 accounts of the partners upon an hypothesis of his own, out- 
 side of the books and their agreements, in order to make it 
 appear, if possible, that his allegation, that his account was 
 not largely overdrawn, and that it was, relatively, as good as 
 his partners and much better than Farwell' s. But in this, upon 
 his own hypothesis, he lias utterly failed. It will be seen on 
 pages 10 and 17 of printed evidence, that Mr. Spink, in his ex- 
 amination in chief, states that the partners had drawn from 
 the funds of the firm of Cooley, Far well & Co., respectively, 
 as follows; 
 
 Cooley, the sum of $51,504.80 
 
 Fanvtjil, " " " 29,228.44 
 
 Wadsworth, " " 50,477.09 
 
 It will be borne in mind that Mr. Spink testifies, as we have 
 before seen, that if the partners draw more than their original 
 copartnership agreement allowed, they should draw in the ratio 
 of their profits. This being so, and it must be, for it is the 
 only rule that Avould be just ; then by adding to Cooley's draft 
 twice the amount of Wads worth's draft and we have the amount 
 he would be entitled to draw to be equal to Wadsworth's 
 draft, to wit : *100,954.18 
 
 Farwell would be entitled to draw an amount equal 
 
 to that drawn by Wadsworth, to wit, - 50,477.09 
 
 Making a total that they would have; been entitled 
 to draw of (Carried forward]) > 151,4:31.27 
 
 24
 
 186 
 
 (Brought forward.} *1 51 ,431.27 
 
 Now take from this amount the sum they actually 
 
 drew, to wit, HO, 732.94 
 
 And we have the amount they were entitled to 
 
 draw more than they did, to wit, - &70,698.33 
 
 to be equal to Wadsworth's drafts. 
 
 This shoAVS that this allegation in this particular is wholly 
 untrue, even upon his hypothesis. 
 
 But it may be said that WadsAvorth, according to Mr. Spink's 
 computation in chief, drew from the funds of C., F. & Co. only 
 $34,310.05, but it will be seen in his reply to the 150th cross 
 interrogatory, on page 208 of printed Evidence, that in this he 
 did not include the following sums which he had received and 
 was charged to his account, to-wit : 
 His draft for - 2,538.47 
 
 Amount received from the assets of C. 
 
 N. H. & Co. 2,527.80 
 
 The interest of C., W. & Co. in the 
 
 assets of C. N. H. & Co. sold to him 13,000.00 
 Making the sum of - -si s, 066.33 
 
 Mr. Spink, on page 110, cross 86, testifies, that the amounts 
 drawn by the partners from the funds of the two firms of C., 
 W. & Co. No. 2, and C.,F. & Co. were respectively as follows : 
 By Cooley $53,311.86 
 
 By WadsAvorth 52,376.38 
 
 By Farwell 32,364.71 
 
 * 13 8,05 2. 95 
 
 The parties having the right to draw in proportion to profits, 
 and by making Wadsworth draft the standard, and Mr. Cooley 
 would be entitled to draw - 8104,752.7''- 
 
 and Farwell the sum of 52,376.38 
 
 Making the sum of 8157,129.14 
 
 Which C. and F. were entitled to draw. Now by 
 taking the amount they did draw from this 
 amount, to-wit : - 84,741.09 
 
 And we have the amount of x , 2,388.05 
 
 Which they were entitled to draw more than they did from 
 said tAvo firms. Surely Wadsworth's account Avas relatively 
 largely overdrawn by the original articles of agreement, by the
 
 18? 
 
 special agreement of the partners and by the rule of* merchants 
 as well as the rule of equity ; and he knew it was when he filed 
 his bill, and of this he bears testimony himself, when he signed 
 the said agreement of the 21st of January, 1862. And now he 
 comes into Court upon his own figures, and they testify against 
 him and his bill. 
 
 SEVENTEENTH POINT. 
 
 Complainant's capital stock in the firm of Cooley, Farwell & 
 Co., was short in the ratio of the amount the partners sever- 
 ally agreed to pay into said firm, as compared with that which 
 his partners paid in, upon the basis of the books, or the- ori- 
 ginal articles of copartnership ; and upon the basis of his own 
 hypothesis ; and upon the basis of the computations of his 
 experts in chief. 
 
 Let us refer again to the figures to see if it is not so. Mr. 
 Spink testifies on pages 109 and 110, cross 81, 82 and 84, as 
 follows : That according to the books of account, Wads- 
 worth's deficit of capital was $39,150.58. According to my 
 computations in chief his deficit of capital stock was $17,840.15. 
 Upon the basis that the partners were to pay in capital stock, 
 as follows : half by Cooley, two-fifth by Wadsworth, and one- 
 tenth by Farwell, then Wadsworth was short in his capital in 
 that proportion to theirs in the sum of $18,624.93. And that 
 Farwcll's capital stock paid into the firm of C., F. & Co., on 
 the basis of the computations in chief, leaving out the wrong- 
 ful charges of the Wabash avenue building account and the 
 loan of $5,000, was the full sum of $26,860.32. 
 
 To equalize the aforesaid inequalities of capital stock and 
 private over-drafts, the partners mutually agreed to cast inter- 
 est upon such deficit of capital stock and private drafts at 
 the rate of six per cent, per annum, and accordingly the books 
 of account weiv made up under said agreement, containing 
 their stock and private accounts with interest charged and 
 credited at that rate. Was there; anything wrong in this? 
 Certainly not, if the partners agreed so to do; and the evidence 
 shows conclusively that they did so agree. The entries in the 
 books as we have seen under the law, are sufficient evidence 
 of this fact ; but the books stand strongly supported as to this 
 agreement by the said " Exhibit A " of Spink' s deposition, on 
 |age -44 of printed evidence, in which is contained the charge 
 of this interest by name to the account of Wadsworth, And
 
 1 ss 
 
 certainly us to the equit y of tliis interest there can be no doubt. 
 In fact at that time interest at six per ecu!, was below the 
 usual rates of the banks, and among those who had money to 
 loan on long time. But to a firm that had to borrow money at 
 a rate of from 10 to 20 per cent, in order to sustain their busi- 
 ness and keep their credit good, as Mr. Leiter testifies, they 
 were obliged to do, interest at six per cent, as Mr. Spink tes- 
 tifies on page 90, cross 68, Avas not an adequate or fair consid- 
 eration. The full capital provided for in the articles of copart- 
 nership of the firm of C., F. & Co., was no more than the busi- 
 ness of the firm required. The neglect to supply it on the part 
 of Wadsworth lessened the amount of business of the firm, and, 
 as a consequence, lessened the profits of its business ; but 
 instead of lessening the labors of Cooley and Farwell, it 
 increased both their anxiety and labors ; for as Mr. Spink has 
 testified, it requires much more skill and labor to conduct a 
 business -when the capital is insufficient, than when it is ample. 
 Nor was Mr. AVadsworth entitled to the full time, capital or 
 services of Cooley and Farwell in this firm, except on the 
 ground that he paid into that firm the full sum of $80,000, but 
 notwithstanding his great failure as aforesaid, he has received 
 the constant and unremitted labors of his partners during the 
 entire term of said copartnership. And they were obliged to 
 so labor, and to redouble their labors by reason of his said defi- 
 cit of capital, or permit said firm to make a ruinous failure ; 
 and as it was, with all their energy and skill, both their time 
 and money, capital and their credit, were put in peril by his 
 said failure to make up his capital. 
 
 Before passing to the consideration of the cross bill filed in 
 this cause, we desire to call the attention of the Court to a few 
 items in the evidence specially, and 
 
 1st, That the goods sold after the 9th of January, 1802, 
 and up to the 1st of February following, were croneously 
 charged up to stock account, when they should have been 
 charged to the private account of Cooley and Farwell. (See 
 evidence, page 582, inty's GO, 61 and 62). 
 
 2d. There was no injury done to either of the partners by 
 the erasures spoken of in the 81st direct interrogatory of Mr. 
 Spink, made in the stock account on page 1 of ledger; and 
 there was no injury done by reason of the said entries not fol- 
 lowing each other in the order of time. Mr. Spiuk testifies,
 
 189 
 
 that "none of the partners suflVivd any loss from the manner 
 " in which the entries were made. It is evident to me that 
 " these erasures were marie to correct errors previously made. 
 " They or some of them would probably have suffered, had the 
 " erasures not been made. 
 
 3d. The goods on hand at the close of each firm must be 
 considered, in the absence of a special agreement, as uncon- 
 verted assets, and they could not be considered as so much 
 capital, when put into the succeeding firm, except by special 
 agreement. (See evidence, page 216, croSs 178.) 
 
 4th. Mr. Spink's computations in chief change the basis of 
 all the transfers of assets from one firm to another, and the 
 basis of interest from that of the agreements of the partners, 
 as evidenced by the entries on the books. (See evidence, page 
 217, cross 179.) 
 
 5th. The said several partners, being acquainted with all 
 the private agreements between themselves, the books would 
 show to them what their respective accounts were prior to said 
 transfers. (See evidence, page 216, cross 175.) 
 
 6th. Mr. Spink made no account, in his compilations in 
 chief, of the said unequal over-drafts of the partners, as here- 
 inbefore set forth and explained. (See evidence, page 86, 
 cross 53.) 
 
 7th. There were uncollected notes and accounts belonging 
 to the first firm of Cooley, Wadsworth & Co., on the 1st of 
 April, 1859, amounting to $15,628.08 ; and on the first day of 
 February, 1862, there was remaining uncollected the sum of 
 $12,750.02. (See evidence, page 110, cross 85.) 
 
 8th. The words, " the remaining assets of both firms shall 
 be divided pro rata, according to the amount due to each, 
 would in mercantile circles be understood to mean that each 
 partner should have an amoimt of the remaining assets equal 
 to the balance at his credit in stock account on the books. 
 (See evidence, page 117, cross 102.) 
 
 9th. Mr. Spink testifies, on page 221, cross 195, that he, in 
 his examination of the books of account of the said three firms, 
 did not discover any evidence of deceit, nor any evidence of 
 an intention to deceive, in the manner the said books or any 
 of them were kept. 
 
 10th. " Annual statements were made of the merchandise 
 " on hand and money drawn by each partner, and each part-
 
 190 
 
 '- ))(!"> statement was given to him. On the liooks of C., W. 
 " & Co., the moneys drawn by each parlner were placed in 
 " the back part of the ledger ; also his portion of the net profits 
 " of each year. Upon the books of C., F. & Co., the monex s 
 " drawn by each individual member of the firm were placed to 
 " his account in the back part of the ledger. The net profits 
 " were placed to a profit and loss account in the same ledger. 
 " There was no annual division of them. There also appeared 
 "on the books of C., W. <fc Co., the capital stock furnished by 
 " each member of the firm; and on the books of C., F. & Co., 
 "the capital that was to be furnished, or the capital of the 
 " firm. I herewith append a copy of said statement, marked 
 " ' Exhibit No. 1.' Collections made from C., W. & Co., No. 
 " 1, were divided to Cooley and Wads worth, in these state- 
 " ments made on the books of C., W. <fc Co., No. 2. (See 
 " said 'Exhibit No. 1,' on page 508 of printed evidence.) Mr. 
 " Wadsworth requested of me, at one time, a statement of his 
 " account in the several firms, showing the moneys he had 
 " drawn in the several firms, covering his interest therein. I 
 " gave him an account showing the moneys lie had drawn in 
 " the different years, and his proportion of the profits, so far 
 " as they were divided upon the books, and also the stock paid 
 " into the several firms. I might add, that in the account of 
 " C., F. & Co., profit and loss account was not divided, but I 
 " gave him the aggregate." (See Mr. Leiter's testimony, on 
 pages 573 and 574, int. 12, 13, 14, 15, 16 and 17.) 
 
 llth. There was no injury done to either partner, nor was 
 there any impropriety in leaving the said building account 
 standing on the books. (See Mr. Spink's evidence, page 107, 
 cross 77.) 
 
 It will be remembered that, so soon as the said debts of ('.. 
 F. & Co. were paid, to wit on the 28th of January. 1S03 
 Mi-ssrs. Cooley and Farwell, in pursuance of the said agree- 
 ment of settlement, gave notice to Mr. Wadsworth of that 
 fact, and that they were ready to divide the remaining asset > 
 as PIT said agreement. But he refused so to do; and the rea- 
 son why he refused he states in his bill to be, that said remain- 
 ing assets were not converted into money. And lie undoubt- 
 edly has given the true reason. He did not want the care of 
 his portion of said "remaining assets," nor the expense and 
 labor of collecting and converting the same into money. It
 
 191 
 
 was his intention to force this care and labor upon Mr. Far- 
 well, and up to this time- lie has succeeded in so doing. On 
 the ix{.h of May, J863, Mr. Far well had collected from said 
 assets the sum <>(' s I <;, So 7. 58, and thereupon, to-wit on the 
 same day and year Messrs. Cooley and Farwell gave to said 
 Wadsworth notice ot that fact, and that they wei'e ready to 
 divide the same and the other remaining assets, under the said 
 agreement. (See notices on pages 68 1-2, marked "Exhibits 
 Nos. 1 and 2," to the deposition of Mr. Ballard.) On the 6th 
 of February, 186;!, Mr. Wadsworth received of said remain- 
 ing assets, in money, the snm of $3,497.77. (Sec Mr. Letter's 
 testimony, on page 596, I 79; page 59:3, I 72; page 594, I 77.) 
 
 It may be well to state, in this connection, or call the atten- 
 tion of the Court to the error of Mr. Leitcr in his first depo- 
 sition, as to the amount of the nncollected notes and accounts 
 now on hand over and above the amount charged to profit and 
 loss. 
 
 On page 582, int. 59, Mr. Leiter testifies, "that the amount 
 charged to the account of profit and loss since the making of 
 the said agreement of the 21st of January, 1862, is $149,015.29." 
 
 On page 591, cross 42, he says: " That the said charge to 
 the account of profit and loss included that of the firm of C., 
 AV. & Co., No. 2, and C., F. & Co." (See page 582, int. 59.) 
 
 On page 581, int. 56, he says : "That the amount of the 
 notes and accounts now on hand, uncollected, is about $175,- 
 <K)0." In his 2d deposition, on page 691, int. 2, he states " that 
 he made an error in this amount of $30,000, and that the true 
 amount of uncollected notes and accoitnts was, in fact, but 
 -s| 17,000." 
 
 On page 578, int. ;>G, lie says : " That the amount collected 
 -nice the payment of the said debts of Cooley, Farwell & Co., 
 is -ss5,913.15." 
 
 And since the taking of Mr. Leiter's last deposition Mr. Far- 
 AVell has collected from ten to fifteen thousand dollars more. 
 These amounts are, of course, subject to some expenses and 
 costs, by way of attorney and court fees, tfcc. 
 
 From the testimony of Mr. Leiter we also learn, that about 
 the time the said debts of the firm of C., F. & Co. were paid, 
 as aforesaid, Mr. Cooley retired wholly from business, and di- 
 rected him, as a member of the firm that succeeded to the 2d 
 linn of ('., F. it Co., to keep all the funds collected from the
 
 192 
 
 said remaining assets of the first firm of C., F. <fc Co., ready 
 to be divided whenever Mr. Wadsworth desired to divide the 
 same under the said agreement of the 21st of January, 1862, 
 and that all collections made from said " remaining assets " 
 were deposited with said succeeding firm (Farwell, Field & 
 Co.,) ready at any time to be so divided. On or about the 1st 
 of January, 1865, the said firm of Farwell, Field & Co., dis- 
 solved, and thereupon the said moneys arising from the said 
 " remaining assets " have been kept on deposit with the Union 
 National Bank of Chicago, and are now on deposit with said 
 Bank, ready, as they always have been, to be divided under 
 the said agreement. 
 
 EIGHTEEN!'] I POINT. 
 
 The complainant insists that capital must, under the law, be 
 refunded before profits are realized. This may be so, under 
 the original copartnership agreements, but original agreements 
 are subject to change by subsequent agreements ; and, as we 
 have hereinbefore shown, the said copartnership agreements 
 were, one and all, changed in many particulars, and the evi- 
 dence of such changes were entered upon the books of account, 
 and subsequently were, time and again, ratified by the acts of 
 each of the partners. The said final agreement of settlement 
 of the 21st of January, 1862, was not only a recognition of all 
 the entries in the books, and evidenced a change of the original 
 copartnership agreements, but it was a ratification of all the 
 said changes and entries in the books in conformity to them. 
 But while Mr. Wadsworth is contending that the capital of 
 each partner must be refunded before the profits are realized, 
 it would be well for him to remember at least two things, 
 
 1st. That the debts of the firm must be paid before either 
 partner, under the law, could withdraw from the funds of the 
 firm either the capital stock or the profits. When the said 
 agreement of 21st of January, 1862, was made, and Mr. Wads- 
 worth received in money the sum of $10,000, there were debts 
 of the firm then unpaid amounting to about #430,000. 
 
 2d. Mr. Wadsworth, at the time of making the said agree- 
 ment under the predicate of his bill, had actually withdrawn 
 all the capital lie had paid into the said firms, one and all, and 
 a portion of the profits, while there remained unpaid of the 
 debts of C., F. & Co., amounting to about #430,000.
 
 193 
 
 Mr. Spink testifies, on page 81, cross 45, "that Wadsworth 
 never paid into the said three firms (on the predicate of his 
 bill) in property and money, but $17,471.84." 
 
 On page 79, cross 42, he testifies, "that Wadsworth drew 
 out of the three firms the sum of $73,279.01," and on page 80, 
 cross 44, he says, " that Cooley and Farwell, to be equal in 
 their drafts to Wadsworth, they would have been entitled to 
 draw, more than they did, $68,892.77." 
 
 Now, if the firm of C., F. & Co., is to be taken to be but the 
 continuation of the firm of C., W. & Co., as Mr. Wadsworth in- 
 sists, then he has drawn in money from the funds of that firm, 
 $73,279.01, when he had paid into the firm only $17,471.84 
 thus o\terdraw T ing the actual capital he paid into said firm, or 
 that he paid into the said three firms, (on his basis,) the sum of 
 $55,807.17. Be it remembered, that on the basis that Mr. 
 Wadsworth desires this Court to adopt in its adjudication upon 
 the matters in controversy, he has not paid into the capital 
 stock but $17,471.84, and that he has drawn out for his private 
 use the sum of $73,279.01, and at the same time complains, 
 because, in the settlement of January 21, 1862, his capital was 
 not refunded to him ; and at the same time he takes, by said 
 agreement of the 21st of January, 1862, $10,000 more of the 
 funds for his private use, notwithstanding there was debts un- 
 paid of $430,000. His scrupulous exactness is certainly note- 
 worthy ; and his feelings of exact justice toward his partners 
 and the creditors of the firm seem to have been compelled to 
 look through the lens of his personal selfishness. 
 
 Why is it that Mr. Wadsworth places himself in such strange 
 positions before this Court, when viewed from his bill of com- 
 plaint and the evidence ? Simply, because he has attempted 
 to ignore the real agreements of the partners and all their acts, 
 done in conformity to said agreements. Thus he is thrown 
 into the greatest inconsistencies in his pretended statement of 
 facts in his bill ; and thus, too, his acts under said agreement 
 (some of which are presented in the evidence) are in direct 
 conflict with his averments in his bill. It is but natural that it 
 should be so. No man can attempt to perpetrate a fraud upon 
 another without exposing himself to the danger of being de- 
 tected bp the inconsistencies of his acts and sayings. We ac- 
 knowledge that he is " sharp, shrewd and cautious," as many 
 witnesses have testified, but " sharp, shrewd and cautious ' 
 
 25
 
 194 
 
 i 
 
 men cannot, without great danger of detection, attempt to 
 pervert truth and facts. Truth and fact go hand in hand, side 
 by side, like two parallel lines, and never cross each other; 
 while falsehood and fact cross each other's lines. In this, and 
 in no other manner can his inconsistencies be accounted for. 
 
 NINETEENTH POINT. 
 
 Mr. Wadsworth's charge, that the said agreement of the 21st 
 of January, 1862, was a fraud upon him, and therefore void, is 
 disposed of by his own statement to John H. Dunham, Esq., 
 of Chicago, in which he virtually pronounces said allegations 
 of fraud, mere fabrications. Mr. Dunham testifies, on page 
 619 Int. 3, that in " October or November, 1863, Wadsworth 
 stated to me that he had the utmost confidence in Mr. Cooley, 
 that the result of the difficulty was owing to Mr. Farwell'S new 
 mode of book-keeping, he believed. My impression is that he 
 stated he did not believe that either of them would deliberately 
 commit a fraud ; he knew Cooley wouldn't. There was a good 
 deal of conversation in detail about it, all of which I can't re- 
 collect." On page 620, I. 5, in reply to the question, "What, 
 if anything, did he say about mistakes ?" he answers : " My 
 general impression from the conversation is, that there were 
 mistakes made -by Farwell in his manner of book-keeping." In 
 answer to the 6th Int'y, he says : " I don't recollect that there 
 was anything said about the profits arising from the firm that 
 succeeded Cooley, Farwell & Co., except that his leaving the 
 firm turned out a mistake" As to the feeling among business 
 men at the time said agreement was made, in answer to the 
 7th int., he says that Mr. Wadsworth stated to him, " that the 
 future was so uncertain that each one of these gentlemen, him- 
 self, (Wadsworth) Cooley, and Farwell, were desirous of re- 
 tiring from business. And he (Wadsworth) stated in connec- 
 tion with that, that it was a mistake on his part in retiring 
 from business" In answer to the 8th int'y, he- states that 
 there was much said as to the general feeling of uncertainty of 
 future business, and " that the war looked very much like ter- 
 minating the January preceding. Had it have closed, disaster 
 would have overtaken every man engaged in business. He 
 asked me if that was not the feeling. I told him that it Avas, 
 so far as I kncAV." On page 621, in answer to the 9th int'y, he 
 stated that Wadsworth told him that " the uncertainty of com- 
 mercial affairs in the future was the reason for his retiring,
 
 195 
 
 (from business at that time). That in their negotiations his 
 partners felt very much as he did." In answer to the llth int. 
 he says he was acquainted with the feeling and prospects of the 
 business community. Prudent men felt as if there was great 
 uncertainty. The prospects for making money were not good. 
 Governor Bross testifies, on pages 485-6-7, that Mr. Wads- 
 worth told him that there was no fraud on the part of Cooley 
 & Farwell, and that it was only a mistake in the account. 
 Mr. Spink testifies, on page 90, cross 67, that the books were 
 kept accurately, with the exception of the said errors of inter- 
 est made in favor of Wadsworth. On page 105, cross 74, he testi- 
 fies, that : "The books show full credit to each of the partners 
 for the actual capital originally paid into the first firm by each 
 of them. They show full credit for the share of profits in the 
 three firms, to which each was entitled, and I found no errone- 
 ous charges, other than those of interest, as pointed out here- 
 tofore." In answer to cross int. 75, page 106, he says : " There 
 are no accounts properly chargeable to either of the partners, 
 which have not been charged or paid." On page 221, cross 
 int'y 195, he says: "In my examination of the books of ac- 
 count of the said three firms, I have not discovered any evi- 
 dence of deceit, or intention to deceive in the manner they, or 
 any of them have been kept, or in the entries therein con- 
 tained." 
 
 What was the mode of book-keeping adopted by said firms, 
 or by Mr. Farwell ? The ordinary one, by double entry. There 
 has not been any evidence to impeach the mode of book-keep- 
 ing adopted, or that it was other than the usual double entry 
 mode. Does Wadsworth expect to impeach the mode adopted 
 by mere assertions and allegations in his bill ? If he does, he 
 cannot expect that this court will follow such impeachment. If, 
 then, the books were kept accurately, what has Wadsworth to 
 complain of ? He, in his conversation with Mr. Dunham and 
 Gov. Bross, clears both Cooley and Farwell of all intention to 
 defraud him ; for he says that " he did not believe that either of 
 them would commit a fraud." How is a fraud committed except 
 by deliberation and intention ? If there is no intention to 
 commit fraud, then there is no fraud committed. A fraud can 
 not have existence except it is designed. The design or inten- 
 tion constitutes the fraud itself. Xow, if he clears Cooley and 
 Farwoll of the design or intention to defraud him, his charge
 
 196 
 
 of fraud in his bill falls to the ground, and his bill utterly fails, 
 for it is based on the ground of fraud. The substance of all 
 of complainant's charges are, deception and fraud. But it now 
 turns out that complainant made these charges of deception 
 and fraud in his bill, when he did not in fact believe that his 
 charges were true. Fraud, then, is not the real difficulty be- 
 tween Wadsworth and his partners ; for he comes forth and 
 relieves them of all intention to defraud him. And, more than 
 this ; for he says that the charges of fraud Jor deception con- 
 tained in his, bill, as to the manner the books of account were 
 kept, were not in fact designed or intended to deceive him, or 
 to defraud him ; for, what errors they may have contained, he 
 says, were mere " mistakes made by Farwell in his manner of 
 book-keeping." There were, then, two mistakes made, and he 
 states them to Mr. Dunham to be as follows : 1st. " The mis- 
 takes made by Farwell in his manner of book-keeping ;" 2d. 
 his own "mistake" of leaving the firm when he did. It has 
 been conclusively shown that there was no "mistake" in the 
 manner or mode of book-keeping. That "Wadsworth made a 
 "mistake" in going out of business at that time, may be true. 
 But if he made a mistake in this particular, why does he seek 
 to cast the blame upon Cooley and Farwell ? He admits that 
 they felt as he did, " and were desirous of retiring from busi- 
 ness, at the time he did." He does not pretend to Mr. Dun- 
 ham that he did not act upon his own judgment in retiring from 
 business. But he says he made a " mistake" in so doing. How 
 and why so ? Simply because he retired too soon from his said 
 copartnership, and for this reason he wants some of the profits 
 made by the firm that succeeded to the business of the said 
 firm of C., F. & Co. ; and, therefore, on page 28 of his bill he 
 asks this court to declare " said agreement of the 21st of Jan- 
 uary, 1862, fraudulent and void, and of no effect ; and that he 
 may be decreed to be entitled to his proportion of said firm's 
 assets, and of the profits realized by the use thereof since the 
 dissolution of said copartnership." 
 
 He imagines that Cooley, Farwell and Field, who formed a 
 copartnership at the close of said firm, and continued its busi- 
 ness, have made large profits, contrary to his expectations and 
 judgment ; and because they did so, and because he had made 
 up his judgment to the contrary ; because he was mistaken in 
 this, therefore they are bound to indemnify him against this mis-
 
 197 
 
 take, and let him have a portion of their profits. [He was not will- 
 ing to take the risk of future trade, but they were, and did ; and 
 having done 'so, and succeeded, he claims they should reward 
 him for his mistake by giving him a portion of the profits they 
 have earned. Now had this new firm lost money, or if Wads- 
 worth believed it had, he would not be in this court, whining 
 over his " mistakes " in retiring from business at the time he 
 did. He has been told that since the dissolution of his said 
 firm, that Cooley and Farwell have made more money than 
 ever before, and he wants a part of it ; and the only way he 
 can get it, is to set said agreement aside. 
 
 But if this agreement is set aside, how is he to be admitted 
 into the said new firm, with which he never had anything to 
 do, and in which he never was a partner ? He informs us that 
 it is on the ground of the " use of the said 'remaining assets' 
 by the said new firm, since the dissolution of said copartner- 
 ships." This surely is a new and novel mode of forcing one's 
 self into copartnership relations with a firm that never had 
 anything to do with him. 
 
 A copartnership must exist, in order that profits may be en- 
 joyed between two or more persons ; and a copartnership is 
 formed by the consent and mutual agreement of those who 
 constitute its members. Has he shown any agreement forming 
 a copartnership with Cooley, Farwell &^ Field^after the disso- 
 lution of his said firm ? He does not even pretend that there 
 ever was any. He has not even shown, by any evidence, that 
 this new firm ever used any of said " remaining assets ;" and 
 if he had, that would not entitle him to any interest in said new 
 copartnership, or entitle him to receive any of its profits. He 
 must be a partner, and liable as such, to the risks incurred by 
 the copartnership in its business operations, before he is en- 
 titled to share its profits. His claim in this respect, though not 
 unlike other claims put forth in his bill, is simply preposterous. 
 
 At the time Mr. "Wadsworth made said agreement of settle- 
 ment, and retired from said firm, it was (as he stated to Mr. 
 Dunham) his opinion, that had the war closed, as it was then 
 supposed it might, " disaster would have overtaken every man 
 engaged in business." His fears upon this matter were so great 
 that he retired from said firm voluntarily ; and he now tells 
 Mr. Dunham that he made a " mistake" in not having more 
 pluck at that time.
 
 198 
 
 But he was not alone in his fears, and he appealed to Mr. 
 Dunham if such fears and feelings were not general at that 
 time, and Mr. Dunham informs him that they were, so far as 
 he knew. These feelings and forebodings in regard to the 
 future were everywhere participated in, the whole country 
 over. Cooley and Farwell, as we have before said, were not 
 perhaps more courageous than he was, except by reason of the 
 necessity that was, in progress of events, forced upon them. 
 
 As we have before said, the old firm had debts to pay, 
 amounting then to nearly $430,000, and it had less than $600,000 
 of assets to pay with, and at a time when business credit and 
 confidence were everywhere wanting. Mr. Wadsworth, by his 
 importunate appeals to Mr. Cooley to lend or loan him $35,000 
 for the reason that it was "life or death" with him, shows that 
 they could not rely upon him in this crisis. The storm that 
 was brooding over the nation was only gathering blackness. 
 Not a thunderbolt had riven its darkness. The nation was 
 grappled by treason, and was held by the monster as if it 
 were master. Business men were filled with alarming fears. 
 Statesmen stood appalled. It is not surprising, surely, that 
 Wadsworth and his partners desired to get out of business, or 
 that Wadsworth should seek to shake off from himself, and 
 place the whole responsibility upon Cooley and Farwell, of 
 paying $430,000 of indebtedness, with less than $600,000 of 
 unconverted assets ! And having done so, and secured the 
 advantages of his said agreement, is it manly in him, after 
 Cooley and Farwell have struggled through this mountain of 
 responsibility, and thereby placed themselves as first among 
 business men in their energy and financial ability, to come 
 begging his way into this court with the plea that he made a 
 " mistake" in retiring from the said business at the time he 
 did? After his confessions and his said statements to Mr. 
 Dunham, the fraud which he seeks to fasten upon Cooley and 
 Farwell is out of the question, for he declares it to be a mis- 
 take of his own. 
 
 OF THE CROSS-BILL AND ANSWER. 
 
 By the cross-bill, Cooley and Farwell ask relief upon the 
 following matters : 
 
 1st. That the said agreement of the 21st of January, 1862, 
 may be established, and declared to be a sufficient bar to any 
 further proceedings of Wadsworth against them.
 
 199 
 
 2d. That Wadsworth may be required to divide the said 
 " remaining assets" under the said agreement. 
 
 3d. That, in such division, the said sum of $3,500 received 
 by Wadsworth from said " remaining assets," may be charged 
 to his account as so much of his proportion of the money now 
 on hand, and that Cooley and Farwell may have a like pro 
 rata share of said money under said agreement before the 
 ' ' remaining assets" are divided under the same. 
 
 4th. That an account may be taken of all the profits real- 
 ized by Wadsworth, by reason of his wrongful copartnership 
 relations with the said firms of Huntington, Wadsworth & 
 Parks, C. M. Henderson & Co., and Letz & Co., and of the 
 resulting damages, by reason of said copartnership relations, 
 and to pay over the same into said fund, or said " remaining 
 assets." 
 
 5th. That Mr. Farwell may receive compensation for his 
 services in collecting and converting said " remaining assets" 
 into money, since the payment of the debts of C., F. & Co., 
 (amounting now to about $90,000), out of said " remaining 
 assets." 
 
 Mr. Wadsworth, in his answer : 1st. Denies that the agree- 
 ment of the 4th of December, 1855, formed or made new re- 
 lations and new terms of copartnership. 
 
 2d. He denies that said agreement of the 21st of January, 
 1862, was a settlement of all matters of account and of interest 
 upon stock and private accounts between the said partners. 
 
 3d. He admits that he signed the said agreement of the 
 21st of January, 1862, but insists that he did^so without know- 
 ledge of the condition of the firm, and that Cooley and Far- 
 well "took advantage of his ignorance by false and fraudulent 
 entries and fictitious accounts, and by false statements and 
 representations that his private account was largely over- 
 drawn ; " and " that he was induced to sign said paper writing 
 solely by the entries, accounts, statements and representations 
 aforesaid ;" and that Cooley and Farwell " used said books (of 
 account) to prove the same ; (that is, to prove that his private 
 account was overdrawn,) and thus induced him to sign said 
 paper writing." 
 
 4th. He " denies that he was overdrawn, as by the books of 
 account it was shown, and as stated by said Cooley and Far- 
 well," and he " insists that his account was, relatively, far
 
 200 
 
 better than it was represented and better than Farwell's, and 
 it was as good as Cooley's, and, therefore, said paper writing 
 was fraudulent and void." 
 
 5th. He denies that Cooley and Far well were ready to di- 
 vide said assets, " but admits that C. and F. notified him that 
 they were ready to divide them." 
 
 6th. He denies all other allegations in the cross bill and the 
 equity of the prayer thereof. 
 
 To this answer Cooley and Farwell filed their general re- 
 plication. 
 
 The making and the execution of the said agreement of the 
 21st of January, 1862, set forth in the cross bill is admitted, 
 but Mr. Wadsworth seeks to avoid it on the ground of decep- 
 tion and fraud practiced upon him by Cooley and Farwell. 
 The whole controversy under the said original bill, and the 
 cross bill, in fact, springs or grows out of said agreement. In 
 his original bill of complaint, as we have seen, he urges, as a 
 reason for setting said agreement aside, that false entries in 
 the books of account caused him to make a mistake as to the 
 relative standing of the private and stock accounts of the part- 
 ners. In his answer to the cross bill, he makes the same 
 alleged cause the reason for avoiding said agreement (See 3d 
 and 4th pages of answer to cross bill.) By this allegation, in 
 his answer to the cross bill, as well as in his original bill, he 
 admits that he examined the books of accounts, and then 
 charges that he was misled by the false entries, and thereby 
 induced to sign said agreement. 
 
 The charges in the crossbill, as we have hereinbefore shown 
 from the evidence in the case, have been all proved. But Mr. 
 Wadsworth has failed, as we have shown from the evidence, 
 to prove that his answer is true as a whole, or in one material 
 allegation or averment. 
 
 The charges in the cross-bill, that Wadsworth, without the 
 knowledge or con sent of either Cooley or Farwell, and in viola- 
 tion of his said original copartnership agreements, entered into 
 other branches of wholesale business in the city of Chicago, 
 during the existence of the said firm of C. F. &Co., with other 
 firms as a partner therein, to wit, the said firms of IL, W. & 
 P., C. M. H. & Co., and Lctz & Co., to the great injury of 
 the business of the said firm of Cooley, Farwell & Co., and to 
 the personal injury of Cooley and Farwell, and continued such
 
 201 
 
 other branches of business in connection with the said three 
 above named firms, during the existence of the said firm of 
 Cooley, Far well & Co., have all been clearly and abundantly 
 proved. We will refer to this testimony, to wit: 
 
 Edmund Burk, jr., testifies, on page 250, cross 8 and 9, " that 
 " the firm of C. M. Henderson & Co. was organized February 
 " 1st, 1859, and was composed of C. M. Henderson and Elisha 
 " S. Wadsworth. It commenced business at the date of its or- 
 " ganization ; it was engaged in the wholesale boot and shoe 
 " business in Chicago. It continued four years and closed its 
 "business January 31st, 1865." 
 
 C. M. Henderson testifies, on page 319, cross 31, "that Eli- 
 " sha S. Wadsworth and himself, composing the firm of C. M. 
 " H. & Co., succeeded to the business of the said 2d firm of 
 " C. N. H. & Co." 
 
 On page 332, cross 49, he says, that said firm of C. M. H. & 
 Co. was formed " about the middle of February, 1859." Cross 
 50, " We may have succeeded to its business from the 1st of 
 February, 1859." 
 
 On page 331, cross 97, he testifies, "that he paid Wadsworth 
 for his share (one-quarter) of the profits in the said firm of C. 
 M. PI. & Co., $17,500." 
 
 Calvin C. Parks testifies, on page 367, int. 3, " that E. S. 
 " Wadsworth entered the firm of H., W. &P., (of which wit- 
 "ness was a member,) about the 1st of January, 1857, and 
 "continued a member until the fore part of the year, 1861. 
 " The firm was engaged in the clothing business and located in 
 " Chicago." 
 
 On pages 370-1, he testifies, " that the said firm of H., W. 
 " & P., kept a few of the same goods that the said firm of C., 
 " F. & Co. did, to wit : Hosiery, furnishing goods, buckskin 
 " goods, shirts, collars, cravats, pocket-handkerchiefs, men's 
 " socks, umbrellas, mittens, undershirts and drawers, blankets 
 " of wool, cloths, &c., and he was to have one-quarter of the 
 " profits." 
 
 On page 373, cross 17, 19 and 21, he says : " He does not 
 " know what Wadsworth's share of the profits amounted to, 
 " and that he will not inform himself so as to be able to state 
 " the amount ; that said firm of H., W. *fc P. did an annual 
 " business of $250,000, and that they sold their goods at a 
 "profit of from 15 to 20 per cent." 
 
 26
 
 202 
 
 Iii answer to cross 96 and 100, he says : " That "Wadsworth 
 " was a member of the firms of C. M. H. & Co., H., W. & P., 
 " and Letz & Co., and that he retired from said firm of Letz 
 " & Co., prior to 1860, and that the firm of Letz & Johnston, 
 "which succeeded it, failed in the early part of 1861." 
 
 Gilbert R. Smith testifies on page 415, cross 30, " that Elisha 
 " S. Wadsworth was a member of the said firm of H., W. & 
 "P. from 1st January, 1857, to February, 1861." On page 
 417, cross 44 and 45, he says, " that said firm of H., W. & P. 
 " kept a profit and loss account, but Jl cannot arrive at the 
 " profits and losses without going over the books of two firms 
 " that the sales per annum amounted to about $380,000; (cross 
 " 47 and 48), he says about one-quarter of this was military 
 " trade." 
 
 Charles H. Fargo testifies, on page 491, int'y 1, 4, 6, 8 and 9, 
 " that he has been a wholesale boot and shoe merchant in 
 " Chicago nearly nine years last past, and that E. S. Wads- 
 " worth was a member of the boot and shoe house of C. M. H. 
 " & Co., and that his connection with that firm would have 
 " the effect for us to use our influence with customers we could 
 " control, to go to some other house than Cooley, Farwell & 
 " Co., to send their customers to C. M. Henderson & Co. If 
 " Wadsworth had not been a partner in the house of C. M. H. 
 " & Co., I should not have used my influence to send cus- 
 " tomers to any other dry goods house (than C., F. & Co.) I 
 " think we might have used our influence to send customers 
 " there rather than to other houses." On page 492, inty's 11, 
 12 and 13 he says : " If Wadsworth had not been a partner in 
 " said boot and shoe house, I should imagine we might have 
 " influenced from thirty to fifty thousand dollars a year to the 
 " house of Cooley, Farwell & Co., and I think there is a dozen 
 " other wholesale boot and shoe houses in Chicago ; said other 
 " boot and shoe houses would be naturally jealous of the house 
 " (C., F. & Co.) and inclined not to send customers there and 
 " would use then: influence against them." On page 496-7, 
 cross 16, 18, 21, he says : " We used our influence against the 
 " house (of C., F. & Co.) rather than for it, during the time 
 " Wadsworth was a member of the firm of C. M. H. & Co. ; 
 " previous to that time we used our influence for the house. I 
 " don't [think we introduced any customers to C., F. & Co. 
 " after Mr. Wadsworth became a partner with C. M. H. & Co., 
 " we may have done so in some instances. I feared to do so,
 
 203 
 
 "because Mr. TV ads worth was a partner in the Louse of C. 
 " M. H. & Co., which would give the house of C. M. H. & Co. 
 " extra facilities Avith the hoitse of C., F. & Co., enabling C. M. 
 " H. & Co. to become acquainted with the customers of C., F. 
 "<fc Co., when other boot and shoe houses would not enjoy 
 " those facilities." On page 501 he says, " there were 15 
 " wholesale boot and shoe houses in Chicago at the time 
 " referred to, and 11 wholesale dry goods stores, and 13 whole- 
 " sale clothing stores, and 3 dealing in cloths and cassimeres, 
 " 2 in fancy trimmings, 3 in yankee notions, 6 in millinery 
 " goods." 
 
 Henry W. King, a wholesale clothing merchant in Chicago 
 for ten years past, testifies on page 504, int'y 5, that Wads- 
 worth was a member of the said firm of H., W. & P. Int'y 8 
 to 12 inclusive, he testifies, "that the connection of Wads worth 
 " with the said firm of H., W. & P. interfered very much with 
 " our (firm) introducing trade to C., F. & Co. If it had not been 
 " for that connection, I presume there would have been a recip- 
 " rocity of trade between us, (C.,F. & Co., and Barret, King & 
 " Co.) We sold from three to four hundred thousand dollars 
 " per annum, and we could have influenced a large amount of 
 " trade to C., F. & Co., but I can give no figures. I had con- 
 " versalion with Cooley soon after Wadsworth formed his co- 
 partnership with H., W. & P. I was explaining to Cooley 
 " why it was that we could not, as a house, send business to 
 " Cooley, Farwell & Co., as we would like to do, because of 
 " Wadsworth's relations with a clothing house with whom we 
 " were competitors. Mr. Cooley then assured me that Wads- 
 " worth's connection with the house of H., W. & P. was made 
 " without his knowledge or consent and that he was sorry for 
 "it. (Int'y 14.) Wadsworth's connection with said firm of H., 
 " W. & P. would naturally prevent clothing men from intro- 
 " ducing trade to Cooley, Farwell & Co. (Int'y 15.) And 
 " the effect upon other shoe dealers would naturally prevent 
 " them from introducing trade to C., F. & Co., because, if Mr. 
 " Wadsworth, or the firm with which he was connected, sold 
 " them (customers) dry goods, he (Wadsworth) would naturally 
 " try to sell them clothing and boots and shoes ; therefore deal- 
 " ers in those two articles would not send their dry goods trade 
 " to the house (of C., F. & Co.) " Page 509, he says, " soci- 
 " ally, his firm were on intimate terms with C., F. & Co., but 
 " not in a business view."
 
 204 
 
 Thomas B. Carter, one of the oldest merchants in Chicago, 
 testifies on page 532-3, int'y 15, " that Wadsworth's connec- 
 tion with a clothing house in Chicago, would have some 
 " effect from the loss of business from other competing houses, 
 " that is, a person engaged in the dry goods trade and also 
 " connected with a clothing house, would not secure the cus- 
 " torn and good will of other firms engaged in the clothing 
 "trade. (16.) His connection with the clothing house of 
 " Huntington, "Wadsworth & Parks, upon the business of Coo- 
 " ley, Farwell & Co., would result to their (C., F. & Co's) 
 " injury so far as the good will of other clothing houses were 
 " concerned, but to what extent I cannot state; in myjudg- 
 " ment it would amount to many thousands of dollars worth of 
 " trade; it is a common practice among business men to intro- 
 " duce customers to each other, and customers would not gen- 
 " erally be introduced to the house of Cooley, Farwell & Co. 
 " by other clothing houses, while one of the firm of Cooley, 
 "Farwell & Co. was connected with a clothing house. (17.) 
 " The effect of Wadsworth's connection with a wholesale boot 
 " and shoe house would be the same as in the case of his con- 
 " nection with the clothing house above referred to. (18.) 
 " His connection with the boot and shoe house of C. M. Hen- 
 " derson & Co. would be the same as that given to the 16th 
 " int'y in the case of the clothing house. (19 int'y, page 534.) 
 " A clothing house like that of Barrett, King & Co., would 
 " have had it in their power to send to the house of Cooley, 
 " Farwell & Co. a large amount, say from 20 to 50 thousand 
 " per year, which they would not be likely to do in conse- 
 " quence of Wadsworth's connection with a competing clothing 
 " house ; if the clothing house of Huntington, Wadsworth & 
 " Parks was the only clothing house in town, the connection of 
 " said Wadsworth with said clothing house would be a benefit 
 " to Cooley, Farwell & Co., but as there were many other 
 " wholesale clothing houses in the city, his connection with the 
 " aforesaid clothing house was an injury to Cooley, Farwell & 
 " Co. (21, page 545.) I should say to compensate Cooley, 
 " Farwell & Co. for the injury done them by reason of his 
 " said connection with H., W. & P. would require from 
 " $5,000 to 810,000 per annum. (22.) And for his connection 
 " with C. M. H. & Co., I should say from three to ten thousand 
 " dollars per[ annum."
 
 205 
 
 Mr. Wadsworth seeks to make these witnesses modify their 
 evidence on the question of damage to said firm of C., F. & 
 Co., and in doing so he assumes or predicates his question upon 
 the hypothesis, that the said firms of EL, W. & P. and C. M. 
 H. Co. gave to the firm of Cooley, Farwell & Co. their entire 
 and undivided influence, and that said damage would thereby be 
 lessened ; but in this he has failed to weaken the strength of 
 said testimony in any degree, or to counteract it in any partic- 
 ular. He did not nor did he dare to attempt to prove di- 
 rectly that either of the said firms of H., W. & P. or C. M. 
 H. & Co. gave their influence to C., F. & Co., for neither of 
 them did ; and so far from it, that there was a feeling of cool- 
 ness between those firms and C., F. & Co., engendered by 
 Wads worth's connection with them in their said business. 
 
 Roger J. Bross, an old merchant, testifies on page 551, com- 
 mencing with int'ys 14 and 15, that, from information, he 
 " knows that Wadsworth was a partner in the houses of H., 
 W. & P., and C. M. H. & Co., and upon the hypothesis that, 
 by reason of his connection, C., F. & Co. lost from thirty to 
 fifty thousand dollars' worth of trade per annum, " the per 
 cent, of loss to Cooley, Farwell <fc Co. on such an amount of 
 trade would be at least 10 per cent, nctt."" 
 
 Daniel W. Gale, a wholesale dry goods merchant in Chicago 
 for ten years past, testifies, on page 561, int'y 6, "that from 
 the 1st of February, 1857, to the middle of the summer of 
 1860, and from the 1st of March, 1859, to July, 1863, the re- 
 ciprocation of trade between the firms of H., W. & P., and 
 his house, and between C. M. H. & Co. and his house, has been 
 as follows : they sent his house some trade, and his house had 
 sent those houses some trade." 
 
 Levi Z. Leiter, the book-keeper of C., F. & Co., testifies on 
 page 579; int. 46, " that the firm of C., F. & Co. made 16 per 
 cent, profit on goods." 
 
 John M. Johnston, a partner with Wadsworth in the firm of 
 "Letz & Co.," on page 673, int'y 3, testifies, that in March, 
 1857, he formed a copartnership with Elisha S. Wadsworth, 
 Geo. F. Letz and W. H. Cheneworth, under the name of 
 "Letz & Co.," in the iron business, and continued until the 
 1st of January, 1860. The name of (mark!) T. W. Wads- 
 worth was used in the place of E. S. ^Wadsworth, (int'y 5), 
 for the reason of E. S. Wadsworth's numerous business con-
 
 206 
 
 nections. Wads worth was to have one-sixth of the profits. 
 (Int'y 10.) I bought out his profits, and agreed to pay him 
 $4,000 for them." By reference to Mr. Johnson's testimony, 
 it will be found that it is fair to conclude that ths firm of Letz 
 & Co. was in fact unable to pay its debts, and in order that 
 Wads worth might slide out uninjured, he caused a new firm to 
 be organized, which assumed his said firm's liabilities, amount- 
 ing to about $40,000, and then this new firm makes an assign- 
 ment, and Wadsworth becomes the principal purchaser of its 
 assets at about one-quarter of their value. See pages from 
 675 to 679. 
 
 Mr. Wadsworth's moral sense is again seen by his copart- 
 nership relations with the said firm of II., W. & P., and his 
 management with said firm in regard to the capital stock he 
 agreed to furnish as a special pai'tner therein. The agreement 
 provided that he should furnish $40,000, and his oath on file in 
 the coiinty of Cook, states that he did furnish this amount, but 
 we see from the testimony of Mr. Parks, on pages 372-3, that 
 no sooner had he paid it in, than he drew it out or the sum of 
 $30,000 of it. And when that firm became bankrupt, he re- 
 tired from it, and a new firm w r as formed, that assumed the old 
 firm's debts, and thus Mr. Wadsworth was enabled to accom- 
 plish the feat of ridding himself of his liability to the creditors 
 of the said old firm, in the amount of his pretended special 
 capital stock of $40,000. See the testimony of Parks, Smith 
 and Lovejoy. 
 
 And it will be further observed that it is fair to conclude 
 from the evidence, that the said firm of Huntington, Wads- 
 worth & Parks, at the time it dissolved, was eith<Sr unable or 
 unwilling to pay its debts, and was owing about $300,000 ; and 
 that E. S. Wadsworth and Parks went out, leaving these debts 
 unprovided for, except by way of the promise of their copart- 
 ners who for a short time assumed the firm name of Hun tins:- 
 
 O 
 
 ton & Wadsworth, (Phillip [Wadsworth) ; that this new firm 
 went largely into debt for goods, and thereby paid said old 
 firm's debts, and then this new firm failed and made an assign- 
 ment, though it had sustained no losses ; and then they com- 
 promised these new made credits at the rate of 55 cents on 
 the dollar ; and so soon as this was done, Elisha S. Wadsworth 
 came back into the firm, under the name of Huntingdon, 
 Wadsworth & Co. Such are our views or conclusions as to
 
 207 
 
 ne facts, from the testimony, and we think they are legitimate 
 deductions. Witnesses Pai'ks, Smith, Henderson and Burke, 
 who are among those who have testified to the said facts, show 
 that at the time they severally gave in- their testimony, were 
 very strongly biased in favor of Wadsworth, and refused to 
 answer many material questions evincing a disposition to 
 shield the said Wadsworth in a multitude of ways by their an- 
 swers. But their evidence, when carefully examined and com- 
 pared, sustains the conclusion that they guarded to the best of 
 their ability, the position assumed by Wadsworth in his bill of 
 complaint. (See evidence, commencing on pages 367, 403, 
 448 and 673.) 
 
 By reference to said settlement and agreement of the 21st 
 of January, 1862, it will be seen that it takes no note of Elisha 
 S. Wadsworth's copartnership relations with other firms, in 
 violation of his said copartnership agreements with Cooley & 
 Farwell ; and it will also be remembered that there is no proof 
 showing that Wadsworth's said violations of his copartnership 
 agreements with Cooley & Farwell formed any part of the 
 consideration for said agreement of dissolution. And there is 
 no evidence to prove that Cooley and Farwell, or either of 
 them, ever, by consent or otherwise, permitted him to form 
 said outside copartnership relations. 
 
 But suppose that Wadsworth's said violations of his said 
 several copartnership agreements with Cooley and Farwell 
 did form a part of the consideration for the said agreement of 
 the 21st of January, 1862. It only makes more strongly 
 against Wadsworth, and in favor of said agreement. If the 
 said agreement was in part based upon the consideration that 
 Wadsworth, in violation of his original copartnership agree- 
 ment, had entered into copartnership with Huntington, Wads- 
 \vorth & Parks, and Huntington & Wadsworth, in the whole- 
 saling of ready-made clothing ; and also, in violation of his 
 said copartnership agreements, he entered into the boot and 
 shoe trade with C. M. Henderson, and made by this one oper- 
 ation, nearly $20,000 clear, without investing any capital ; and 
 also formed business copartnerships with Letz & Co., and 
 Letz & Johnson; and it was also in part based upon the fact 
 that by some of these connections he had injured his credit 
 and reputation, and had embarrassed himself, it only makes 
 our case stronger, and his weaker. And if the Court shall so
 
 208 
 
 conclude, we are content. But in fact, none of these consider- 
 ations entered into said agreement ; and if they did not, we 
 cannot see why we should not be indemnified by reason 
 thereof. 
 
 The damage the said firm of C., F. & Co. sustained by rea- 
 soii of said Wadsworth's said outside operations, would not in 
 their effects be confined to the immediate influence of compe- 
 ting houses in Chicago, as aforesaid, but would extend to the 
 limit of the business acquaintance of the said firm of C., F. 
 & Co., and the personal business acquaintance of said Wads- 
 worth. Not only so, but they endangered or weakened what- 
 ever credit he might have had. 
 
 In the crisis from 1857 to 1862, the credit of all business 
 firms and of individual persons was carefully scrutinized by all 
 who dealt with them. In connection with this fact, take into 
 account the other fact presented in evidence that 'Wads- 
 worth, beside his said copartnership relation with so many 
 firms, at the same time had endorsed the paper of Huntington, 
 Wadsworth & Parks, which was put into the markets in New 
 York, Hartford and Boston, in the sum of from one hundred 
 to two hundred thousand dollars at a time ; and for the house 
 of Leitz & Co. in about the sum of from twenty-five to forty 
 thousand dollars how could it be otherwise than that his said 
 acts, in direct violation of his said copartnership agreements 
 with Cooley & Farwell, would work ruin to his credit, and 
 an incredible damage to the said firm of Cooley, Farwell & 
 Co.? The immediate damage to said firm, from the cause of 
 his said connection with the said three outside firms, to the 
 trade of the firm of C., F. & Co., has been proven to be not 
 less than one hundred and fifty thousand dollars. 
 
 Mr. Carter testifies that the loss by or through such clothing 
 or boot and shoe house, would be from five to ten thousand 
 dollars annually ; and we find from the testimony, that at those 
 times from the 1st of February, 1857, to the 1st of January, 
 1862 there were in Chicago fifteen wholesale clothing houses, 
 twelve boot and shoe houses, and many other houses that 
 would be liable to be like affected. From these considera- 
 tions it is evident that the damage accruing to C., F. & Co. 
 from said causes, at the very lowest estimate, would amount 
 to the sum of $100,000 for and during the same time. Add to 
 this sum the amount of injury arising from Wadsworth's trans-
 
 209 
 
 fers of his said outside copartnership interests, and his com- 
 promises made with the creditors of said firm of Hnntington 
 & Wadsworth, and his coming back into that firm so soon as 
 said compromises of the said debts, amounting to some $225,000, 
 at fifty-five cents on the dollar, was effected, and his transfer of 
 the assets and the liabilities of the firm of Letz & Co. to the 
 firm of Letz & Johnson, and the almost immediate failure of 
 the last named firm, and then his purchase of the machinery, 
 &c., worth fifteen thousand dollars, for five thousand dollars, 
 and we must come to the conclusion that such damages would 
 amount, in the aggregate, to at least the sum of one hundred 
 and fifty thousand dollars. 
 
 But money, at such a time, cannot compensate for such in- 
 jurious effects, and especially when a commercial crises is 
 upon the country, and every business man is compelled, in 
 order to succeed no matter what his riches and credit may 
 be to husband all his money and all his credit, and all his 
 energies and influence, and confine the same to the limits of 
 his own legitimate business. 
 
 Who does not see, from the evidence above quoted, that 
 Wadsworth's said outside business connections his large and 
 reckless endorsements of outside paper, aud his complicity 
 with the said shuffling and compromising operations above re- 
 ferred to would weaken if not utterly destroy whatever influ- 
 ence and credit he might have before enjoyed, and thereby 
 have greatly injured the good credit aud influence of the said 
 firm of Cooley, Far well & Co., and especially at such a time, 
 when the whole country was quaking with the effects of a 
 commercial crisis ? 
 
 Had the credit of Cooley and Far well been exposed to the 
 same strain that Wadsworth's was, the said firm of Cooley, 
 Wadsworth & Co. would have failed. As it was, Cooley and 
 Farwell, as shown by the evidence, were obliged to call to 
 their assistance Charles B. Farwell, who lends to said firm his 
 credit to the amount of one hundred thousand dollars, and 
 they were obliged to resort to other resources, to raise larger 
 amounts of money, to sustain the business and credit of said 
 firm. 
 
 During this whole time Wadsworth had become a mere 
 cipher, and was quaking under the perils of his own personal 
 affairs, and was engaged in trying to raise money to pay his 
 own personal debts, by putting up collaterals for the security 
 of the banks for money so raised, and in fact was trembling 
 on the very verge of bankrupty, while Cooley and Farwell 
 
 27
 
 210 
 
 were giving all their means, and personal credit and influence, 
 and that of their friends, to sustain the business and maintain 
 the credit of the firm of Cooley, Farwell <fc Co. 
 
 The good judgment, prudence, business capacity and credit 
 of Cooley and Farwell, single handed and alone, and without 
 the aid of Wadsworth, saved the said firm from utter ruin ; 
 and not only so, but Wadsworth himself from financial bank- 
 ruptcy. This is evident from his own letter to Mr. Cooley, in 
 March, 1862, above referred to, asking for assistance, which is 
 as follows : 
 
 CHICAGO, March 7th, 1862. 
 
 " DEAR SIR I want you to lend me thirty-five thousand 
 " dollars, so that I can have it by the 20th of this month. You 
 " may think it strange that I should ask you, but it is life or 
 " death almost with me. Do, if it is any way consistent, let 
 " me have it. Please write by return mail. I will reimburse 
 " you out of the first collections of the proceeds of old firm 
 " debts. Yours, &c., E. S. WADSWORTH." 
 
 "T. B. COOLEY." 
 
 2d. From the said agreement of the 21st of January, 1862, 
 by which said settlement was made between Cooley, Farwell 
 and Wadsworth, of all their copartnership matters, even pro- 
 viding for the division between them of the said remaining 
 assets, in the ratio or pro rata amount due to each, did not pro- 
 vide for, or contemplate, that any services should be bestoAved 
 by either partner upon the assets remaining, after the payment 
 of the debts and the expenses attending such payments. As 
 soon as the said debts and expenses were paid, Cooley and 
 Far well's undertaking, under the said agreement, was finished, 
 and the agreement on their part fulfilled. Their copartnership 
 was dissolved and all the business of said firms closed. I 
 contemplation of said agreement, there was no money to di- 
 vide, for there was none after the payment of said debts and 
 expenses. What was remaining was in unconverted assets, 
 and these were then to be divided between the said partners, 
 " pro rata, according to what was due to each." Cooley and 
 Farwell had no right, or rather were not obligated, to proceed 
 and convert the said assets into money for a moment, after 
 they had converted sufficient of the same to pay said debts and 
 expenses. Cooley and Farwell, on payment of said debts and 
 expenses, as they were bound to do, immediately gave notice 
 to Wadsworth of that fact, and that they were ready to divide 
 the said "remaining assets," under the said agreement. Wads- 
 worth refused to so divide them, not, however, on the ground
 
 211 
 
 or because they wanted him to divide them in the ratio or pro 
 rata amount due to each, but on the ground, as he declares in 
 his bill of complaint, because they were not all " converted into 
 money" and, therefore, he says, " they were in no condition to 
 be divided" 
 
 But why did he, at that time, refuse to so divide said " re- 
 maining assets ?" It was evidently because he was determined 
 in his own mind to throw all the responsibility and labor of 
 converting said " remaining assets " into money upon Cooley 
 and Farwell, or as much of them as possible, and thereby save 
 himself the labor, trouble and care of his portion of them ; and 
 therefore, we say, 
 
 3d. That Farwell, who, we are informed by the evidence, 
 has had the sole care and responsibility of said " remaining 
 assets," and who has converted into money during the two 
 years last past from $75,000 to 90,000 of them, should be re- 
 warded for such services out of said moneys. 
 
 The care and labor of collecting and converting into money 
 of $147,000 of assets, consisting of notes, accounts, mortgages 
 and real estate, scattered over the entire North-west, is no 
 small responsibility for one man. If these available assets had 
 been divided between the said partners according to the pro 
 rata amount due to each partner, the labor of each in convert- 
 ing his share into money would be, comparatively, small ; yet 
 it would be quite a responsibility, involving much labor and 
 attention. Xo one understood this better than did Mr. Wads- 
 worth. And no one had more experience in matters of this 
 kind than Mr. Farwell; and each partner, at the time of mak- 
 ing the said agreement of settlement of the 21st of January, 
 1862, unquestionably took this matter into consideration, and 
 thereby determined that after the debts of the firm of C., F. 
 & Co. were paid by Cooley and Farwell, under said agreement, 
 then the said " remaining assets " should be divided " pro rata 
 between the several partners according to the amount due to 
 each," or the amount of the interest each had in the same ; 
 and that from and after the time the said debts were paid, each 
 partner was to take his said portion of said assets into his own 
 care, and assume, from that time, all the labor and responsi- 
 bility of collecting and converting the same in his own way 
 into money. But Mr. "Wadsworth, immediately on the pay- 
 ment of said debts, omits and refuses to divide the said " re- 
 maining assets," not because of deception and fraud, but for 
 the reason, as he says, Cooley and Farwell "had not converted 
 them into money," and therefore they were not, he says, in a
 
 212 
 
 " condition to divide." After having received the considera- 
 tions and the benefits of the considerations of the said agree- 
 ment, he then starts out with his plan to force the care and 
 responsibility of all these assets upon Cooley and Farwell. At 
 this time he had not gone so far in his scheme as to charge 
 fraud. At that time he had not probably been assisted by his 
 solicitor in trumping up his pretence of deception and fraud. 
 Wadsworth 1 s prolific brain needed some little assistance upon 
 this part of the game. At this time Wadsworth did not seek 
 to avoid the said agreement, but only to construe it. His said 
 construction of it was, evidently, not approved by his solicitor, 
 and a more bold and pretentious scheme was afterwards con- 
 cocted. But he worked upon his first plan about eighteen 
 months before he changed it for that of his present or that of 
 his solicitor's. During this time, his great effort was to cause 
 Cooley and Farwell to continue in the sole possession of all 
 the said "remaining assets," not converted into money, and to 
 divide the money arising from the same as fast as it was real- 
 ized. 
 
 He is notified once and again that the said debts were paid 
 and that the said remaining assets were ready for division as 
 per said agreement, and his only reply is, that they are " not 
 converted into money," and therefore, they are in " no condi- 
 tion to be divided." Notwithstanding his said refusal to so 
 divide said assets, he comes into this Court and insists that he 
 had been always ready to divide said assets, and that he had 
 repeatedly urged such division and that, he was informed by 
 Cooley and Farwell that the said debts had not all been paid, 
 and that Cooley and Farwell continually " urged unfounded 
 and frivolous reasons " or excuses for not being ready to so 
 divide the said assets. In no one particular is the double deal- 
 ing and mischievous pretenses of Wadsworth more patent than 
 is his course in this transaction. The truth cannot be disguised 
 from the whole case when the facts therein are taken together, 
 that the only motive Mr. Wadsworth had at first, for his said 
 refusal, was to throw all the care, labor and responsibility attend- 
 ing the conversion of the said assets into money upon Cooley 
 and Farwell, and wholly shirk out himself. He is not willing 
 to lift a finger or make the slightest effort himself. He knows 
 that Cooley and Farwell's interests therein are so great that 
 they will not neglect them if he does, and therefore his interest 
 therein is entirely safe. He may have thought, and possibly 
 have been advised, that the said " remaining assets," being a 
 part of the copartnership assets of the said firms, Cooley and
 
 213 
 
 Far well as copartners with him in said firms, were obliged, not- 
 withstanding their said agreement of the 21st of January, 1862, 
 to collect or convert the same into money without any charge 
 upon the said " remaining assets," or upon him for their services 
 and labor ; and thus he, by refusing to divide the said " remain- 
 ing asset?," could escape all care, responsibility and labor iu 
 regard to them, and at the same time reap all the benefits and 
 advantages that he would, if he carried out the said agreement 
 on his part with fidelity, or that he would, if he gave his atten- 
 tion and labor thereto. But in this calculation or scheme, he 
 forgot, and possibly his adviser may have overlooked the fact, 
 that the said firms and each of them had been dissolved, and 
 all matters between the said parties as partners were settled 
 by the said agreement ; and that in contemplation of the law, 
 these parties were no longer partners per se, and that the said 
 " remaining assets " were in fact by their said agreement no 
 longer partner ship assets, but were simply joint property and 
 no longer partnership property. The said agreement changes 
 the condition of the said parties thereto, as between themselves, 
 from that of the condition or relationship and obligations of 
 partners to that of joint owners. By this agreement all part- 
 nership matters and accounts, and all partnership debts, were 
 provided for and paid under it, and all personal matters of 
 accounts were settled disposed of and closed up. As part- 
 ners that is as between themselves there was no more to be 
 done in the way of agreements as to what they or either of 
 them were to do. The division of the said " remaining assets" 
 was provided for, and if this could not be done mutually 
 between them under the said agreement, they were left to the 
 law governing all such cases of joint-ownership of undivided 
 property. 
 
 A joint-ownership is not a copartnership. One joint-owner 
 cannot, simply by being a joint-owner, bind another joint- 
 owner. A partnership is different. Partnerships must be vol- 
 untary, and therefore no partner and no majority of partners 
 can introduce a new member without the consent of the others. 
 The delectus personarum is always preserved, and so, if one 
 partner sells out his interest in the firm, this works a dissolu- 
 tion of the partnership, which cannot be renewed except by the 
 agreement of all. See 1 Parsons on con. 131, 139. It is, or 
 may be sometimes difficult to distinguish between partnership 
 and tenancy in common, and between partnership and joint- 
 ownership. In general, if the property owned jointly, is so 
 owned for the purpose of a joint business, and is so used, and
 
 214 
 
 the profits resulting from a common fund, it is partnership 
 property, otherwise not. Ibid. 137, 146. See also Post vs. 
 Kimbciiy, 9 John 470; Murray vs. Bogart, 14 John 318; 
 Howes vs. Tillinghast, 1 Gray 289. A partnership is wholly 
 distinct from that of joint-ownership. One partner may bind 
 his co-partner without the knowledge or consent of the co- 
 partner. Partnership as to strangers, or to the commercial 
 world, merges the individual rights and interests into a com- 
 mon firm interest, responsibility and liability giving to each 
 partner all the power of the several partners in the dealings of 
 the firm and its interests, and in its behalf and upon its account. 
 See Collyer on Part. Sec. 19, 20, 22. These "remaining 
 assets" are joint property, and no longer partnership property, 
 and hence the law governing joint-owners governs the parties 
 owning the said " remaining assets." For this reason Mr. 
 Farwell under the cross-bill is entitled to be re-embursed out 
 of said " remaining assets " for the services he has rendered to 
 the said joint owners thereof, in the care and responsibility 
 that has been thrown upon him in regard to the same, and his 
 labors in converting into money the value of about $90,000 of 
 them. And from the evidence of Messrs. Carter and Leiter, 
 Mr. Farwell is entitled to the sum of about $5,000 for such 
 labor and care. See evidence page 535, int'y 23, 24, 25, and 
 page 576, int'y 22 to 27 inclusive, and page 592, int'y 69. 
 
 In the examination of the testimony of witnesses Burke, 
 Parks, Henderson and Smith, introduced by Wadsworth in his 
 behalf, it is evident that they were strongly influenced by their 
 feelings of personal friendship for him ; and possibly by their 
 prejudices against Cooley & Farwell. At least it is manifest 
 that they severally favored him all they could by evading 
 many of the questions on their cross-examination, and by ut- 
 terly refusing to answer others ; while, in their examinations 
 in chief, they were ever ready and willing witnesses. Their 
 testimony, therefore, should be examined with careful scrutiny 
 and discrimination, and received with some considerable al- 
 lowance. (See their testimony on page from 276 to 279, and 
 from 415 to 420, and cross-int'ys from 35 to 62, inclusive, and 
 on page 367, cross-int'ys from 14 to 21, from 37 to 45, and from 
 69 to 78 and the lllth). 
 
 In reviewing this whole case under the evidence in connec- 
 
 o 
 
 tion with the pleadings, the conclusion that all the fraud and 
 knavery that Wadsworth has sought to cast upon the fair fame 
 of Cooley and Farwell, has been brought home to his own 
 door, is irresistible. In all of Mr. Wadsworth's partnership 
 relations with Cooley and Farwell, and in his actings and do-
 
 215 
 
 ings, we find that from the beginning to the close of the same, 
 he has shown the out-croppings of deceit and fraud. His clan- 
 destine or secret association with the said outside firms, in vio- 
 lation of his solemn copartnership agreements with Cooley 
 and Farwell, places him in the front rank of the boldest of 
 deceivers, and the most bare-faced defrauders, 'and that, too, 
 on a large scale. With this record fastened upon him, he 
 comes into this court of equity for relief from his contracts of 
 settlement of all the matters growing out of the partnership 
 relations of the said firms of C., W. & Co., Nos. 1 and 2, C. 
 N. Henderson & Co., and C., F. & Co., which were made and 
 entered into, on his part at least, after long deliberation and 
 careful examination of all the books of said firms, and of the 
 facts in the said premises. Whether he made a good or a poor 
 bargain, is not a question for the consideration of this court. 
 The evidence of the value of the merchandise at the time the 
 said last agreement was made, wholly removes the question of 
 the value from the case. If Mr. Wadsworth made an unwise 
 contract, as matters and trade afterwards turned, he alone is 
 responsible, and he alone must bear its consequences. But as 
 business prospects appeared when he made the said contract, 
 he was wise in his judgment. Whether wise or not, he cannot 
 expect a court of equity will attempt to look into this or that 
 providence or fortunate circumstance, or Avhether it favored 
 this or that bargain or contract in the future of events. If it 
 did, it would find entanglements and mysteries quite too great 
 and difficult, for its powers of comprehension, or of adjudica- 
 tion. 
 
 What, then, should be the decree of this court under the 
 original bill and answer, and the cross-bill and answer, and 
 under the evidence and the law ? We insist that the court 
 should, 1st. Dismiss the bill as to the said defendant Field. 
 Jd. It should find that the said assignment of the interest of 
 the first firm of C., W. & Co., in the said assets of the firm of 
 C. N. H. & Co., was a contract made between the said firm of 
 C., W. & Co., No. 1, and Wadsworth, and for a valuable con- 
 sideration ; and decree that the same should stand as a settle- 
 ment of that matter. 
 
 3d. It should find that the said agreement made on the 21st 
 of January, 1862, was made and entered into by the parties 
 thereto, for a valuable consideration, and that the same was a 
 full settlement of all the copartnership matters, and of the pri- 
 vate accounts connected therewith, then unsettled between 
 them ; and decree that the same stand as such settlement, and 
 that Mr. Wadsworth should fulfill his agreement with Cooley
 
 and Farwell, by the division of the said " remaining assets" 
 between them in the ratio of the pro rata amount of the inter- 
 est of each partner therein as provided by said agreement. 
 4th. It should find, that the said "remaining assets" were 
 
 * O 
 
 no longer partnership assets, but undivided property belonging 
 to Cooley, Farwell and Wadsworth, jointly, in which their re- 
 spective interests were determined by their said several balan- 
 ces as made up under, the said agreement last mentioned ; and 
 decree that the said remaining unconverted assets be sold un- 
 der the direction of this court, after due publication, to the 
 highest bidder, for cash, and that the proceeds thereof be divided 
 between the said parties in interest, in the proportion aforesaid. 
 
 5th. It should find that after the payment of the debts of 
 C., F. & Co., to wit, on the 23d day of January, 1863, it was 
 the duty of the said parties to proceed and divide the said "re- 
 maining assets" as aforesaid, and that the reason why the same 
 was not so divided was the fault of Mr. Wadsworth, and that 
 from that time Mr. Farwell devoted his care and services upon 
 said assets for the mutual benefit of the said joint owners, and 
 that his said services were of the value of $5,000; and decree 
 that said sum of money should be paid to Mr. Farwell from 
 the money now on hand and belonging to said joint property. 
 
 6th. It should find that Mr. Wadsworth, in violation of his 
 said copartnership agreements with Cooley & Farwell, and to 
 the injury of the said firm of C., F. & Co., formed and entered 
 into partnership relation with other firms, to wit: the firms of 
 Huntington, Wadsworth & Parks, Huntiugton & Wadsworth, 
 C. M. Henderson & Co., and Letz & Co. ; and that by reason 
 of these wrongful doings, the said firm of C., F. & Co. sus- 
 tained a loss of $> ; -and decree that Mr. Wadsworth pay 
 
 into the said joint assets or property for the benefit of said 
 
 joint owners the said sum of 8 , which when so increased, 
 
 shall constitute a part of said remaining assets, or property, 
 to be divided between the said parties in interest, under the 
 said agreement as aforesaid. 
 
 7th. It should find that there Lave been incidental expenses 
 attending the care of said remaining property, and the expense 
 of converting them into money, other than that of the said 
 f ervices of Mr. Farwell, which are unpaid ; and decree that 
 all such expenses be paid out of the said joint fund before the 
 final division of the same ; and that Elisha S. Wadsworth pay 
 the costs, &c. 
 
 All of which is most respectfully submitted. 
 
 C. M. HAWLEY, 
 Solicitor and Counsel for Cooley & Farwell.
 
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