Stephens v. Orman (10 Fla. 9, 1862)

FORWARD, J.,

delivered tlie opinion of the Court.

This case in extenso, was before this Court at a term thereof, held in 1860, and a full history will be seen l>y reference to the report thereof, found in "0 Florida, page 23. This Court then adjudged and ordered the cross hill to he re-instated, the judgment of the Court below sustaining the plea of estoppel vacated, and remanded the cause to enquire from the proofs taken or to he taken, whether the relief prayed for in said cross hill should be granted.

It appears from the record at present before the Court, that replication to the answer of cross bill was subsequently filed, and the cause in its various branches set down for hearing; that afterwards,- to wit: on the 4th day of March, A. D. 1861, a decree was pronounced by the Court iu the words and figures following, to wit;

“ In Leon Circuit Court:

Thomas Orman, surviving partner of Orman & Young, vs. Samuel Stephens, Sheriff and Ex-Officio Administrator of Rufus Sewall, deceased.

Bill in Equity.

Same vs. Same...................

Supplemental Bill,

Same vs. Same ........

Cross Bill, Plea and Answer.

“On this day came the parties in the above causes, and the judgment and decree of the Supreme Court of Florida passed and entered at its January Term, 1860, being exhibited, whereby the judgment and decree of Jackson Circuit Court, setting as a Court of equity, passed and entered on the 9th May, 1846, was reversed, the cross hill re-instated, and the said causes remanded to the said Circuit Court of Jackson county for further proceedings; and it further appearing that these causes were, by an order of the J udge of the Circuit Court of Jackson county, removed and transferred to the Circuit Court of Leon comity, and that they hare been entered upon the docket of said Court, said causes were tills day heard together, and were argued by counsel. Whereupon on consideration, the Court doth adjudge, order and decree that the plea to the cross bill be overruled, and the causes being then heard upon the bills, answers, report of auditors, exhibits and proofs, the Court doth adjudge, order and decree that the relief prayed in for said cross bill be refused.

“ It is further adjudged, ordered and decreed, that the assignment made by Orman & Young to Rufus Sewall, by deed of indenture, executed on the 14th January, be valid and binding upon the parties. It is further adjudged, ordered and decreed that the bond of indemnity executed by Rufus Sewall and E.'J. Bower be valid and binding upon the parties; said bond of indemnity bears date the 14th January, 1829, and is executed to Orman & Young, and that the obligations, covenants and conditions therein contained be specifically performed by the said Samuel Stephens, ex-officio Administrator of Rufus Sewall, deceased, out of the assets in his hands to be administered. It is further adjuged, ordered and decreed, that it be referred to Hugh Archer, Esq., Master in Chancery, to ascertain and tax the damages sustained by the said Thomas Orman, surviving partner of Orman & Young, by reason of the failure of said Rufus Sewall in his life time to fulfil and perform the obligations, covenants and conditions in said bond of indemnity contained, and that he report to this Court without unnecessary delay in order to a final decree.”

The cause now comes to this Court on an appeal from this decree.

The erors sot forth in the petition of appeal are :

1st. “ That complainant Orman was not entitled to any decree of any kind, but his bill should have been dismissed for want of merits, and as being founded in fraud and the grossest oppression, and because in truth and justice he is entitled to nothing from Sewall or his Administrator.

2nd. “ Complainant (Sewall) is, upon the principles of right and justice, most clearly entitled to relief to have the contract rescinded, the bond set aside, and a decree for a large sum of money against Orman. That he is entitled to this on account of the superior assets received on account of extra interest, advances, commissions of 2 per cent, for winding up affairs of the partnership, and his portion of the new firm.”

To a proper understanding of matters in issue, it becomes necessary to set forth in substance the allegations in said cross hill, and the answer thereto. The cross hill alleges that on the 5th March, 1826, the said Sewall and Orman & Young entered into a partnership), (see articles of agreement, 9 Fla. 23;) as per agreement the said Sewall transferred to the firm of Orman & Young the stock of merchandize then belonging to him, which really belonged to the firm of William Hitcliings & Company, their store-houses, ware-houses, out houses, &c., of the value of $9,508.09, and afterwards made advances to and procured acceptances, paid their drafts, &e., amounting to nearly $40,000, as will appear by his account filed therewith, and marked Exhibit E., No. 5.

It further avers, that after tbe said Sewall, Orman & Young had carried on business for nearly three years, under the articles of co-partnership, (see 9 Florida, page 24,) he the said Sewall, through misfortune became deranged in his affairs in Mobile, and was compelled through necessity to look elsewhere for means ; that as the firm of Orman & Young had been prosperous in business, and were also indebted to him in a large amount for advances, lie left Mobile, where lie bad, during tbe existence of tlic firm and up to that time resided, and came to Florida that he might receive the portion that was coming1 to him from the concern. That the business of the firm was mostly conducted by Orman & 1 oung, and that he (Bewail) was a silent partner, residing in Mobile, knew but little of the concerns of said firm, and was almost entirely ignorant of their property, the character of their debts, the amount and the prospect of their collection. From the books he could get but little information, as the business was of long standing and intricate, and satisfactory knowledge in that respect could only be acquired by long and laborious engagement in the business itself. Said Sewall further avers in liis said cross bill, that he at first applied to said Orman & Young, (as the time fixed for the expiration of the partnership had elapsed many months,) for the portion that was coming to him from the concern, and was told that their affairs were not adjusted, and that a division could not be made at that time, so as to allow him any thing. lie next applied to them for payment of the amount due him for advances made to the firm, which amounted to about the sum of $20,000 ; but this was also refused, on the ground that they had no money, lie then proffered to take it in good notes, such as were due them, and this they refused. That his pressing necessities being well known to the said Orman & Young, his late co-partners, they determined to make the most of his situation, turned a deaf ear to every proposal he made; that said Or-man & Young made an estimate in writing of the business affairs of the firm, which estimate was in the hand writing of said Orman, which they submitted to him, said Sewall, as a correct statement, as near as could be, of their transactions.

The cross bill further alleges that on furnishing this statement, the said Orman & Young proposed to sell their interest of the firm to said Bewail for $17,500, they, said Orman & Young, in payment thereof, to have choice of paper to the amount cf $ 17,500; that finding all liis efforts unavailing at a fair settlement, pressed by bis wants and tbe peculiarity of bis situation, lie was compelled to accept tlieir said proposition ; and that said Orman & Young took to tlie amount of $17,500 the best of said paper, and snob as bore interest at tbe rate of 15, 20 and 50 per cent. . Said Sewall further avers in his said cross bill, that it was on this statement made out in the band writing of Onnan that be acted, and confiding in it, lie was induced to accept the offer made by them, and alleges that they bad the books in tlieir own possession, liad made all or nearly all the entries, were personally acquainted with every transaction of the firm, and must have known the true state of tlieir concern.

The cross bill further avers that after some time be discovered from an examination of tbe books that lie had been grossly imposed on; that tbe statement made out and banded him by said Orman & Young was incorrect and contained palpable mistatements. The cross bill charges that the notes were set down in said estimate at $28,400, and a list thereof accompanied said statement, which is described as being marked O. No. 3.

Tbe complainant in the cross bill here sets forth the following errors which he has discovered in the list of notes, to his prejudice:

1. That only $275.53 were due from James Webb, instead of $769.47 as represented.

2. That only $757.63 were due from Sears Bryan, instead of $835.84 as represented. • •

3. That only $54.98 were due from Richard L. Watson, instead of $93.75 as represented.

4. That only $55.27 were due from Sion Smith & Joseph Russ, instead of $816 as represented.

5. That only $242 were due from John Register, instead of $536.80 as represented.

6. Tliat only $17.50 were due from Wm. Evans, instead of $ 18.40 as represented.

7. That only $95 were due from Graham & Pope, instead of $110.80 as represented.

8. That only $16.70 were due from Thomas Nalls, instead of $26.70.

9. That only $1,192.10 were due from Brown & Lott, instead of $1,342.10 as represented.

10. That two notes were included in said list from Sims & Murphey for $200, which ought not to have been there.

11. That two notes of J. B. Bryan and Thomas M. Bush were included in said list, which in justice ought not to have been there.

12. That Benjamin Hays’ note for $50 was not delivered to the complainant by the said Orman & Young. That the above mentioned notes were subject to credits which were not disclosed nor made known to said Sewall, making the differences as stated amount in aggregate to $2,013.15.

13. That the accounts of the firm were represented at $16,600, when they were only $13,717.50, including the accounts at the Bay and the memorandum book accounts, which were not included in the estimate, making an error in this respect of nearly $4,000.

14. That the goods on hand were put down at $7,000, when it should have been but $6,000.

15. That the cotton on hand was represented to be worth $4,000, when it was worth only $2,559.96.

16. That corn, pork, &c., was estimated at $1,000, when it should have been $800, making a difference of $200 in that item.

17. That two negro boys were put down at $900, which were purchased for $460.

18. That the debts owing by the firm were put down to $24,000, a much smaller sum than was actually owing.

J 9. That the debts of said firm in Jackson county and bad ones, were improperly rated at $5,000, when they exceed that sum.

Attached to the cross bill, it is averred is an exhibit marked II, No. 8, setting forth a statement of the difference between the said estimate exhibited to said Sewall by said Orman & Young, and what ho said Sewall considers a true state of tlie concern at the time settlement was made. The cross bill further alleges that shortly after said settlement, the said Orman & Young, perceiving errors in their favor, brought them to the notice of him, Sewall, for correction, and lie, Sewall, acceded to them, but that when he, Sewall, required an adjustment of the numerous errors committed to his prejudice as aforesaid, they refused. The cross bill requires the defendants to auswer the allegations thereof, and prays that the said agreement entered into (see 9 Florida, page 28,) between the said Sewall and said Orman & Young, for the adjustment of their partnership concern, be set ande and held for naught, and the bond given by said Sewall and said Bower to said Orman & Young be annulled and given up, and an account taken, or that the errors and mistakes, &c., committed by the said Orman & Young in their said estimate and representations be corrected.

To this cross bill, the defendants Orman & Young, on the 18th December, 1830, plead to part and answer to the residue. As the plea has been overruled and no question arises under it before this Court, it is unnecessary to -set it forth. The said Orman & Young, in answering, say, that in December, 1828, the said Sewall did come to Florida, with a view, as they then supposed, to a settlement of all matters and things of a commercial nature between them ; that the mercantile business of Orman & Young, previous to 7th March, 1828, and also that since that date, was not in such a condition as to admit of a statement approaching to any thing like correctness, nor was it attempted; that said Sewall commenced by asking for a settlement, and exhibited an account, which upon examination, the said Orman & Young found to he incorrect in various matters and to a large amount; that the said Sewall then commenced negotiating for a sale or purchase, and made various propositions to them separately. They further answering say, that eventually the said Sewall made the proposition to purchase their interests for said $17,500 on the terms set forth in the bond.

The said Orman & Young positively deny that anyestimate or statement was submitted by them to said Sewall as accurate or correct, showing the condition of their business, or that he was informed by them that the estimates or statements referred to in his bill were accurate. Thomas Or-man avers that the statement made out by him was made out for his own information, and not with a view to direct or govern the said Sewall in his conduct. Andrew Y oung says he knew nothing of them until he saw them in the store on his arrival from, the bay, and that he objected to Sewall’s having them, as they were then negotiating.

The defendants Orman & Young further say in their answer that said Sowall enquired for himself, examined the books, and had access to them when lie wished; that all calculations and- estimates were general; that no trick or concealment was used to induce said Sewall to purchase, &e. They further aver that the business was carried between them in the way of bargain and sale, in which for an aggregate amount they sold the aggregate of the co-partnership property, on which sale, a balance of each member’s share of the concern was not attempted to be ascertained.

An amended answer to said cross bill was put in at June Term, 1 S31.

This answer admits the origin of the partnership as alleged in cross bill and articles of agreement, and also ad* .mits that Exhibit E, No. 5, is a correct statement of the stock, houses, &c., transferred to them by said Sewall, and it alleges that the same statement shows that the said Or-man & Young gave their notes for the amounts, and they aver that said notes were to bear interest at the Fate of six per cent, after the seventh'day of March, 1827, and at the rate of fifteen per cent, if not paid Within thirty days after due. The said defendants deny the correctness of the accounts marked Exhibit E, and expressly state that they abound in errors and false charges. The answer further avers that similar accounts were exhibited to them in December, 1828, and January, 1829, whilst negotiating a settlement of the concern, and that they at that time distinctly informed said Sewall that they were not correct, and Would not be admitted. The answer further sets forth tliat the accounts betweeen said Sewall and the firm vacillated; sometimes they were greatly in advance to him, and that they were not indebted to him in ,any considerable amount, until the latter part of the year, I82S, and ’this was on account of his acceptances for goods purchased, the last of the year 1827, which principally became duo in the year .1828. They deny in their said answer that said Sewall had a right to demand payment or settlement of the partnership in December, 1828, as he in his cross bill alleges, and aver that by the articles of co-partnership, it is expressly provided said profits were not payable until March,, 1829. They further allege in their answer that in April, 1828, the said Sewall came to Chipóla, and then proposed to take for his interest six thousand dollars; that they offered him five thousand dollars, and one of them, Andrew Young, offered fo take the last sum for his interest; that these propositions were rejected mutually. The defendants further aver in their said answer ■that when said Sewall was there in said April, lie was informed by them that the old stock on hand to the 7th March, 1828, had been taken by them at cost, and that to this he then made no objection. The said Orman & Young .most positively deny that it was with a view of making the most of said Sewall’s necessities that a settlement and payment was not made in said December to him; on the contrary, they aver that the affairs of the old firm had not been brought to a close, so that his share could not he ascertained, nor had the time arrived when his share was payable, and that they had not made collections sufficient to pay off the amount due him on account of acceptances. And they deny that any proposition, within their recollection, was made by said Sewall to take notes for the amount due him, Serval!. They admit he made several propositions, but say none of his propositions were acceded to until he made the one set forth in the bond, and finally agreed to ; and they deny that this last mentioned proposition of $17,500 for the joint interest of Orman & Young, was made by them as stated in said cross bill, and aver it was the proposition of said Sewall made to them • and this, too, after the said Sewall had had sufficient time and opportunity of informing himself as to the condition and situation of the business. They aver that the said Sewall had access at all times to the books, consulted with the clerk of the store, E. J. Bower, who had lived with them from 1826 to December, 1828, and was their principal book-keeper. The answer further avers that during said negotiation, various estimates were made both by them and by said Sewall, and that in none of them did they pretend to accuracy or positive statement; that it was (owing to the manner they conducted business) impossible to arrive at accuracy or positive statement, and this they aver was well Known to said Sewall, who inquired for himself and acted upon his own information. And the said Orman & Young deny (hat the statement mentioned in complainant’s bilí, charged to be in the handwriting of said Orman, was submitted by them to said Sewail as a correct statement of the aifuirs of the said firm; on the contrary, they say it was a “ rough- estim-ate of the aggregate amount,” made for their own information, and deny that said Sewail acted upon it as a correct statement.

Further answering they say, 1st. That so far as relates to the several errors and deficiences pointed out and special! v charged in the cross bill, as far as they recollect, or belisi e, said Sewail was apprised that James Webb was em.irl.ed to a credit for corn and cotton, wliich they'believe was entered on the books about tbe first of January, 1820

2d. That the errors -charged in Sears Bryan’s account will he explained by adding thereto the account of Bryan & Marshall, included therein.

3d. That Watson was credited on his note while the trade was negotiating.

4th. That the amount dne from Sion Smith and Joseph Buss was by note for §400, dated 23d December, 1826, due one day after date, drawing interest at tbe rate of fifty per cent, per annum, till paid, and they aver that said Sewail was informed and knew previous to said agreement that said Buss had delivered 28 or 30,000 lbs. seed cotton, wbieb lie insisted should be credited on tbe note as per agreement claimed by said Russ to have been made with said Andrew Young, hut which agreement was denied hy said Young, said Young claiming that the cotton should he credited on an open account on the books due and owing the firm by said Russ.

5th. They further say that the claim against John Register was in a judgment in Alabama, which judgment, by miscalculation of tbe Attorney, had been taken for too much, and they aver this was at the time of said agreement explained to and known by the said Sewail.

Gth In regard to Evans’ note they say they have noiecollection, but that the books will show correct amount.

7th. The debt against Graham & Pope they say, was originally a judgment for $93, and that the interest up to the time of the agreement would be the amount stated.

8th. That Thomas Nall had done some work for the firm, and, if not otherwise settled, was entitled to a credit therefor.

9th. That a draft had been drawn on Brown & Lott for $50, in favor of E. Chambless, after the estimate and before the sale; that they had no recollection of any other credit to which they were entitled.

10th. The notes of Sims and Murphy they say, were obtained before the sale to complainant, and were with the sale transferred to him.

11th. The notes of T. M. Bush and J. B. Bryan they say, were for the hire of the ntígroes of the firm, and which they say said Sewall knew at the time.

12th. They admit that Benjamin Hayes’ note was not delivered to said Sewall, and allege it was because they, the said Orman &,Y°ung, took it as part of the $17,500 purchase money.

13th. In regard to the aggregate or' sum total of open accounts, as stated in said estimate, they say, the said Sewall did not rely upon that statement as accurate; that it was made out in haste, the books being behind hand, and was not made out for the information of Sewall, but for themselves, and deny that there was any imposition upon the said Sewall intended. They also deny that it was the understanding that the amount of accounts at St. Andrew’s Bay, and memoranda accounts, should be or was excluded in said general statement.

15th. In relation to the cotton, the say the books did not show the amount or cost of the cotton; it was dispersed throughout the country, at different gins and in course of delivery; that the estimate was not intendedor understood by the parties to be accurate; that they Relieve said Sewall received one hundred and thirty bales thereof, which were shipped from St. Andrew’s Bay.

16th. The corn and fodder they say was estimated at its value at the time of sale, and as a gross estimate it is believed to be nearly correct.

17th. They admit the two negroes were purchased at the sum of $160 as alleged in the cross bill and they were in said statement estimated at $900, but avers that the negroes were worth the nine hundred dollars to the firm, and said Sewall did not object to giving that sum.

The answer to said specific charges further states, that they stated to said Sewall all the debts due from the firm as. far as they were known to them and recollected.

The said Orman & Young deny that the debts of said firm in Jackson county were improperly rated at $5,000, for bad and doubtful debts, and aver that they have no doubt that sum was abundant to cover all losses and errors.

The answer admits that there was a small account of errors on both sides, and said Sewall was called on to adjust them.

And the said Orman & Young in their said answer positively and expressly deny all manner of fraud, and imposition and deceit, charged against them in said cross bill.

The following is the testimony in the case, viz :

Testimony of "William Taggard, of the firm of William Taggard & Co., witness for Orman & Young, taken 30th October, 1830;

1st. Do you know the parties ?

Ans. To the first interrogatory he answers and says, that he knows the plaintiffs and the defendant Sewall, but that he has no personal acquaintance with the defendant Bower.

2d. "Were tbe plaintiffs Orman & Young indebted to you oil the 14tli January, 1820? if so, state the amount they owed you, or the firm of which you are a partner, and state the amount due you previous to the shipment by the schooner Carroll; if anything he claimed on account of said shipment ?

Ans. The plaintiffs, Orman & Young, were indebted to tbe firm of William Taggard & Oo., of which deponent is a member, on the 14th of January, 1829, in the sum of fifteen hundred and eighty-four dollars, or thereabouts, of which amount four hundred and thirty-four dollars, or thereabouts, was due previous to tbe shipment of the schooner Carroll, and the balance of said amount, viz : eleven hundred and fifty-four dollars, or thereabouts, was due on account of said shipment.

3d. If anything was due you at the above date, state if the same has not been paid, or some part, and what part ?

Ans. Nothing has been paid by tbe said parties on account of said debt, but that this deponent has received from insurance companies nine hundred and sixty dollars, or thereabouts, on account of losses on shipments by the schooner Carroll, which shipments were made on account of Orman & Young, to deponent’s information and belief.

4th. Was the amount due by said firm assumed by any one, and if by Sewall, did you receive bis letters to that effect ? if so, annex the original, or, if that be lost, a copy, and state date, &c.

Ans. At tbe time of contracting the whole debt due deponent, the defendant, Sewall, was a partner in the house of Orman & Young, and deponent looked to said firm for payment of bis debt; that this deponent, in the latter part of 1828, or the early part of 1829, sometime after the debt due deponent, on tbe 14th of January, 1829, was contracted, received a letter from the defendant Sewall, stating that he liad arranged matters with Orman & Young, and had taken the business into his own hands, but containing nothing in particular in reference to the debt of deponent; that deponent is unable at present to lay his hands on said letter, and lias no copy.

5th. Ii any part of said demand lias been paid, please state who has paid it, and at what time the same was paid, and to wliat part of the demand you applied the payment ?

Ans. Nothing lias been paid, and nothing received on account of deponent’s debt, except the amount stated above as received from the underwriters, which has been received within a few weeks past, and has been credited by the deponent to the account of the shipment by the schooner Carroll.

Testimony of Charles A. Sewall, taken 24th August, 1831:

1st. Was you in New York in October, 1828, purchasing goods ?

Ans. I was.

2d. Was you personally acquainted with Mr. Taggard of the house of William Taggard & Co., merchants of New York ?

Ans. I ivas.

3d. Did you know of an order or memorandum sent William Taggard & Co., by Orman & Young, for a quantity of goeds ? if yea, state the circumstances.

Ans. While in New York I heard William Taggard, oí the house of William Taggard & Co., observe to Rufus flowall, “I have received an order from Orman & Young, enclosing a memorandum, of goods which they wish meto purchase. . I have no funds of theirs noiv in my hands, and you can take the order and make the purchase.” And to my knowledge, Rufus Sewall did make purchases of the order.

4th. Wéi'e the goods thus purchased shipped by tlie schooner Carroll, and was the cargo of said schooner aban-* doned to the underwriters ?

Ans. The goods thus purchased were shipped on board the schooner Carroll, which vessel, meeting with some disasters out, I deemed it prudent to abandon my interest to the xmderwritbrs, and Rufus Sewall likewise abandoned the in-* terest of Orinan & Young.

5th. Is the annexed statement of $957.41, the balance due Rufus Sewall on the transaction, and the account of William Taggai'd & Co., which is likewise hereunto annexed, to the best of your knowledge correct ? viz:

Messrs. Orman & Young,

To Rufus Sewall, Dr.

October, 1828, for merchandize purchased in N eW York of O. & O. Waddel,.... . .......$ 664.80

Of Wm. Bryan,............\ .........312.28

Of Spear, Carlitor & Co.,.................... 904.29

Of J. & L. Brewster,..............245.69

$2,127.06

1,169.65

Interest on balance, 12th May-,................ $ 957.41

Messrs. Orman & Young,

To Wm. Taggard & Oo., New York, Dr.

October, 1828, for my acceptance for merchandise, purchased as per your order of Brown & Humphreys,............................... $ 226.69

Of Wm. B. Corgro,....................... 291.30

Of Wm. Todd,................................ 259.32

Of Blackwell & McFarlan....... .............. 259.32

$1,042.52

Amount brought forward,.-. <................$1,042.52

967.63

$ 74.89

Airs. To the best of hit knowledge the statement of both accounts is correct, but I know not!ling respecting the charge of commissions and interest, which I think ought to be made.

6th. Did you not consider Bufus Sewall as the principal of the eon cera, of Orman & Young ?

Ans. I did-.

7th. Is the annexed a correct extract from a letter written by William Taggard <& Co., to Bufus Sewall?

(Remark by the Court; this extract referred to is not found in the record.)

Ans. It is.

Testimony of Addison Man dell, a witness for Orman & Young, taken before Commissioners, 22d June, 1831:

Interrogatory. Please state whether you had for collection a debt against complainants in favor of Florence & Co., and if you applied to defendant for payment, and what was his answer, and state the time ?

Ans. He had a demand in his hand in favor of J. L. Florence, for live hundred and some odd dollars, against the, plaintiffs, upon which suit was brought and money collected. At the time he called upon Mr. Orman, one of the firm, he informed him that it was to be paid by Sewall. lie after-wards on the same day saw Sewall, who stated he was to pay it, but Orman & Young bad not acted right with him and he should not do it; they might pay it, and he would have the use of the money until it could be collected : the time was May, 1829, or shortly thereafter, but not later than June.

Testimony of "William J. Watson, a witness for Orman & Young, taken before Commissioners, 22d June, 1831:

Interrogatory. Did defendant purchase of you a tract of land? if so, state with what funds you were paid, and describe the land.

Ans. Rufus Sewall purchased from him the South-west quarter of Section five, the North-west quarter of Section eight, the East half of the Nortli-east quarter of Section six, the East half of the South-east quarter of Section six, all of Township five, Range eleven, N. and W., for which the said Sewall gave between twenty-eight hundred and three thousand dollars. Eive or six hundred dollars, as this deponent believes was paid in cash, and his own paper due to Orman & Young, the balance was paid in notes and accounts due to and given to Orman & Young. This deponent does not recollect the precise amount of the notes he received, but according to contract they were selected from the debts due to the late firm oí Orman & Young.

Testimony of Ebenezer J. Bower, taken before Commissioners at the instance of Orman & Young, on the 20th June, 1831.

Interrogatory. 1st. Do you know of the trade between the above parties in relation to the stock of goods, and sold by the complainants to defendant? if you do, please state, 1st. Whether defendant frequently counselled and advised with you in relation to the trade, in relation to the general character of the debtors, and the value of the concern in the aggregate.

Ans. I do know of the trade between Orman & Young and Rufus Sewall, for a stock of goods and a quantity ol other property, to a large amount. The goods were estimated in the statement hereunto annexed, in the handwriting of Rnfns Se-wall, at six thousand dollars, though I believe they were estimated by Orman & Young at seven .thousand dollars. "The same goods were afterwards included in. the concern of Bower & Sewall, at( six thousand five hundred dollars. Said Sewall frequently advised and consulted with me on the subject of the trade while it was negotiating, and on particulars about which he seemed doubtful, and on the general character oí the debts due to the concern, but not (as I recollect,) as to the aggregate value of the whole concern.

2d. Did you consider the trade as a lumping one, or as a trade for specific articles, and state what was defendant’s view of it, so far as you could judge by his words and general conduct whilst the trade was negotiating, and at the time 2

Ans. I considered the trade a lumping and general one, and not of specific articles ; no inventory was taken of the goods. Said Sewall was evidently dissatisfied with the trade while it was negotiating, as he expressed to me at the time, but said it was the best he could do; that Orman & Young had a large amount of his property in their hands which he must have the control of. After the trade was consummated, he seemed to be better satisfied.

3d. Please state, and particularly describe the property received by Sewall from complainants, viz: The land and negroes each, what belonged to the firm of Orpaan & Young, as all subsequently acquired with the funds and debts, and means of the firm ? I

Ans. The property sold by plaintiffs to defendant consisted of a stock of goods, (before described,) a lot of land adjoining Webbville — tenor fifteen acres — on which stood a cotton gin house and several other log houses; also a quantity of corn, bacon, cotton, two negro boys, onemegro man, one negro woman and child, two or three horses and mules, a storehouse in "Webbville, a store and warehouse at St. Andrew’s Bay, besides a large amount of notes, accounts and other valuable papers. There was subsequently purchased with the fund.'., debts and property of Orman & Young, the* following property, viz: Three quarter sections of land purchased of Wm. J. Yvatson, valued at about three hundred dollars; one quarter section, purchased of Thomas .1. Scar-lock; about forty acres of land purchased of Thomas <1. Russ ; three quarter sections of land, eleven negroes, some corn, bacon, horses, mules, &c., of James Webb, valued at &ix thousand live hundred dollars. I am not sure that the whole amount was paid out of the means of tlie concern of Orman & Young, but am satisfied that the greater part of it was.

4th. State whether Sewall was informed of the situation of Thomas Russ’ notes and amounts, and the judgment against Register, and also the Russ and Smith’s notes, and state what was their situation, and if Sewall knew it?

Ans. I recollect having a conversation with said Sewall .immediately before or after the trade, (I think it was before,) on the subject of Thomas Russ’ note, and Sion Smith’s and Joseph Russ’ notes for four--dollars, at fifty per cent., in which 1 told him all I knew about it, and particularly stated an understanding between said Russ and Young in the fall preceding, about Russ’ cotton, whicli, according to tlie understanding, was to be applied to the payment of this note. After Russ had delivered the cotton he applied to said Orman for a receipt, which he, said Orman, wrote, and also a note for the amount of said Russ’ account, and then sa:d to Russ, if yon will sign the note I will sign the receipt. Russ declined signing the note, and the business ended. Mr. Orman then attached both blank note and receipt to the leaf of tlie ledger containing said Russ’ account, and all remained in that situation till the aforesaid trade was consummated. I don’t distinctly recollect of informing Mr. Sewall the situation of the judgment against John Register. I knew that it. was rendered through mistake, for more tlian Orman & Young claimed, and was always under the impression that Mr. Sewall knew it. I had, previously to the trade, heard Orman observe that he only wanted the amount due.

5th. Relate all you know, which will in any way benefit complainant • •

Ans. At all times when. I was at filestore of said Orman & Young, said Sewall had free access to all the books and papers belonging to the concern. On the 7th of March, 1828, said Orman commenced taking an inventory of the stock of goods on hand, and from that time changed their business entirely. The firm, as it had existed, wras considered by the said Orman & Young to be dissolved, and Rufus Sewall was considered no longer a partner. Their partnership having expired on that day, according to their agreement, the business was afterwards kept separate and distinct from that of the old concern. Sewall was at 'Webbville in March or April of the same year, when he attempted to make a settlement with Orman & Young, who declined doing so, because (as they informed me,) Mr. Sewall had their notes to a large amount which he was not prepared to give up. During the time, and afterwards, when said Or-man & Young were absent, I had charge of the concern. Said Sewall had free access to the books and papers, and had a fair opportunity to examine and calculate for himself. One of the letters hereunto attached is in the handwriting of Rufus Sewall, the other is my answer to the same. I was clerk for Orman & Young for about two years, during which time I never discovered anything that led me to believe that they were disposed to wrong said Sewall' in the least amount. At the time of the trade I supposed five thousand dollars were sufficient to cover all bad debts and all amounts due by said concern in Washington and Jccohson counties.

The following are the letters above referred to, as attached, viz:

Hallowell, 29th July, 1828.

E. J. Bower, Esq. — Dear Sir : I enclose a letter to Messrs, Orman & Young, which I wish you to examine, also the agreement entered into by Orman & Young and myself, which Mr. O. will send you for inspection. Either W. or myself have made some grand error, or else I have made some mistake of Mr. O.’s meaning. I shall proceed to New York in a day or two, I will then forward you my power of attorney. I do not know but it will be well enough to constitute you and Maj. Webb my attorneys. At any rate, I only want precisely what the agreement gives. If I have wrong impressions or incorrect views, certainly unprejudiced men can determine. All O. & Y. have is now due to me, and the amount is much too large for me to lay out of. It is on this account, I think, however honest O. & Y. may be, it is very proper I should have some uninterested person or persons to look a little to my interest. I shall write you again from New York. In the meantime believe me,

Y ery respectfully,

RUFUS SEWALL.

Notes and accounts,.........................$17,947.62

do. do. '......................... 16,491.16

Aug.,...................................... 1,660.00

Goods,.................................... 6,000.00

Cotton,..................................... 4,000.00

Gin house,................................. 1,000.00

Cash.................... 1,000.00

Gyves,..................................... 1,800.00

$58,868.78

Bad and doubtful debts, R. S., $19,800.00

Amount brought forward,.'...................$19,800.00

II. S.,...................................... 5,250.00

N. ().,..................................... 3,200,00

N. Y.,..................................... 450.00

$28,700.00

Trial January 1st, 1829.

Orman & Young’s indebtedness is above in this way, according to their own accounts.

Dr.

One note due on the 1st February, 1828,..........$ 2,500

One note due on the 1st May, 1828,.............. 1,500

One note due on the 1st April, 1829, ........... 500

On demand,........................ 11,659

On demand,.................................. 2,535

On demand,....................... 50

On demand,................................... 3,180

Mr. Sewall’s acceptance,........................ 5,200

Payment, ..................................... 3,000 •

Deceived payment,................. 95

- — -,.............................. 15,434

My account in Boston,.......................... 3,200

Since in cash paid,............................ $49,232

Or.

By proceeds of bales of cotton,..................$ 5,500

By proceeds of 320 bales of cotton,............... 9,497

Draft on New York,............................ 960

115 bales shipped to Liverpool,.................■. 4,200

164 bales shipped to New York,................. 5,200

Cash,......................................... 2,000

Freight,....................................... 615

$28,492

$28,492

26,831

Being........................................$7,500

One-third profits of $28,331 is the whole business.

I only sketch to you the situation of Orman & Young’s accounts with me, to show only the nature of the obligations Orman & Young stand to me. If any men are the least hound to another, it must be Orman & Young aré bound to me, as strong as men can be. I have concluded to address a word to Judge Webb, only for the purpose of deciding in casé aity misunderstanding between you and Mr. Orman. I presume Orman & Young owe me $30,000, or, that is, that amount is due me from the concern.

Yours, etc., R. SEWALL,

ANSWER of BOWER TO SEWALL.

Webbville, Sept. 10th, 1828.

l)mr Sir: I have delayed writing you until I could see' Judge Wéb'b 'npoli the subject of your letter, which I was not able to do until yesterday. He informed mie that he was entirely ignorant of the agreement between you and O. & Y.; that he should leave here to-mo'rrow for Key West, and should not he able to render you any service in the settlement of this business.' Orman, in the meantime, has protested against making any settlement with any one but yourself, and lias written you on the subject. I have no doubt of O. & Y.’s intention to do yon strict justice. I will, however, as requested, attend particularly to your interest in the business.

Business has been tolerably good this summer. We have sold since the 7th March, upwards of $11,000 worth of goods. Please remember me to your brother, and tell him I shall look for him in October.

Yours sincerely,

E. J. BOWEE.

Testimony of Ebenezer J. Bower, in answer to interroga* tories propounded before the Auditors, 23d August, 1831 i

Interrogatory 1. Were you a clerk for Orman & Young in their store at Webbville ?

Ans. I was,

2d. IIow long- did ydú act in that capacity ?

Ans. About two years.

3d. Hid you act as salesman and principal book-keeper while you were with Orman & Young ?'

Ans. I did,

4th. "Were you left for months in the entire control and discharge of the business at Webbville ?

Ans. I was.

5th. Do you know whether the business was managed for the best interests of the concern ?

Ans. It waSj as well as I could judge.

6th. Was Orman vigilant and attentive to the business at all times 5 and did he have to attend to and the principal business abroad in purchasing goods, &e.

Ails, He was, and did.

7th-. Do you or not believe that the business was well and faithfully conducted at St. Andrew’s Bay by Young, except when his health was so bad that he -was not dble to attend to business; and then did Orman & Young have in their employ Silas Dinsmore as clerk, who assisted at St. Andrew’s Bay during the illness of Young, until in December, 1827, or January, 1828?

Ans, I do, and they did.

8th, From all you knew, was the business honestly, faithfully and correctly managed by Thomas Orman and Andrew Young, for the best interests of the concern ?

Ans. It was.

9th. Did you know either Thomas Orman or Andrew Young to make use of the money, credit, or means of the concern, in any -way to effect or promote any individual transaction, or to secrete or dispose of anything that belonged to tlie concern tliat is not accounted for in their books %

Ans. I never did.

10th. Were the books ofJRufus Sewall’sbusiness done at St. Andrew’s Bay in 1825, and also the books of William Hitchings & Co.’s business done at St. Andrew’s Bay and Webb-ville, in 1825 and 1826, by the purchase made of Sewall, and the accounts in them due, and the notes, judgments, &c., purchased of said Sewall, as appear by the list here shown and attached, always considered the same in relation to Orman & Young’s business as any of the business of said firm, and conducted in all instances, in settlement or arrangement with individuals, precisely the same as any of their accounts, notes, judgments, &c. %

Ans. They were.

11th. Did Orman & Young close doors and commence taking stock at Webbville on the 7th day of March, 1828, and continue until they had taken a faithful account of everything in the store, or when ?

Ans. They did.

12th. Did Orman & Young, in your presence, or did you count the cash they had on hand on the 7th day of March, 1828, and take an account of it, and also keep an account of all that was received in all business previous to the 7th March, 1828 ?

Ans. I don’t recollect of counting'the cash or seeing it counted, but presume it was counted by me or in my presence, as a very particular account of everything was taken at that time. A regular account was always kept of cash before, as well as since the 7th March, 1828.

13th. Was the account of stock taken at Webbville entered in a book for that purpose, and the original sheets upon which it was taken rolled up together and carefully tied, and laid in or on the book case; and did it not remain there at the time Orman & Young sold out to Sewall?

Ans. I don’t distinctly recollect on what the account of stock was first taken, but it was copied from the original in a book.

14th. Was the total amount of stock taken at St. Andrew’s Bay by Young received at Webbville soon after the 7th March, 1828 ; and is not the account here attached, in the handwriting of Young, to the best of your knowledge and belief!, the same in amount and substance that was then received ?

Ans. I do not recollect seeing the inventory of stock at St. Andrew’s Bay taken by Mr. Young.

15th. Did Orman & Young direct you, Mr. Bower, to take an account of all the notes, and include the interest to 7th March, 1828, and did you do it ?

Ans. They did, and I did.

16th. Did Orman & Young direct you to make out the individual accounts, and take an account of all that was due them on their books at Webbville on the 7th March, 1828, and did you do it ?

Ans. They did, and I did.

17th. In closing the business done previous to 7th March, 1828, did not Orman & Young direct, you to keep it separate and distinct from the business they were doing after said 7th March, 1828, and did you do it, and was it not generally done ?

Ans. They did, and I did, and it was.

18th. Did you understand from Orman & Young that the business done after said 7th of March, 1828, was altogether on their own account, and that, in the former business, Kufus Sewall was concerned with them ?

Ans. I did.

19th. Did Orman & Young open a new set of books throughout on resuming business, after an account of stock was taken, after the 7th day of March, 1828, and did they commence atrd keep a new file of notes, altogether separate and distinct from that previous to the 7th day of March, 1828?

Ans. They did.

20th. What was' the amount of sales and merchandise made by Orman & Young after the 7th day of March, 1828, to the time they sold out to Rufus Sewall, and was their business better then that it had been for the same month in any previous year ?

Ans. The amount of sales of merchandise, from the 7th March to August, 1828, was about eleven thousand dollars better, I think, than they had been in the same months of any previous year. The business was very good to the first of January, but I have no recollection as to the amount of sales. The merchandise account on the ledger will show the amount.

2'lst. Did you understand from Rufus Sewall, when he visited Webbville in April, 182:8, that his object was to make a settlement with Orman & Young,, and close the business of the old concern ?

Ans. I did.

22d. Did yon understand from Rufus Sewall, or from Orman & Young, that the reason a settlement was not then made was, that Rufus Sewall had not with him the notes of Orman & Young, aird certain other documents that were necessary in effecting a final settlement, or what were the circumstances ?

Ans. I did from Mr. Orman.

23d. Did you hear Orman & Young tell Rufus Sewall in their counting room in Webbville, in 1828, that, as he was not here at the time the co-partnership- expired by its limitation so as to buy or sell by the parties, agreeable to the terms of the articles of co-partnership, that they had been obliged to take the stock generally to their own account at its value, and proceed on with the business, considering him as withdrawn from the concern, and did he, (Rufus Sewall,) make any objection at that time, or did he consent?

Ans. I have no recollection of these circumstances.

24th. Did you, then, in April, 1828, hear Orman & Young and Rufus Sewall endeavoring to trade for Sewall’s interest in the old concern, and did you hear Rufus Sewall offer to take for his interest in said concern, six thousand dollars, and did yotr hear Orman & Young offer him five thousand dollars, and, after some talk, dropped the subject and did not trade ?

Ans. In April, 1828, Orman & Young and Rufus Sewall were endeavoring to trade in some way, but heard no offer or proposition, except by Mr. Sewall who made some figures on a piece of paper and held it up to Orman & Young, and said he would give that, meaning, I suppose, the amount stated in figures. This took place the night after the day he arrived at Webbville, and it was the first circumstance that led me to believe that Rufus Sewall was concerned with Orman & Young.

25th. Did Orman & Young, in April, 1828, pay to Rufus Sewall two thousand dollars, as per his receipt, and did not yon let him have of money that was collected during Or-man’s absence to New Orleans, in April or May, 1828, six hundred and thirty-five dollars, as per his receipt ?

Ans. I don’t now recollect of Orman & Young paying R. Sewall, in 1828, two thousand dollars, but distinctly recollect of paying him myself about the amount stated in the question a few weeks afterwards, when Mr. Orman was absent to New Orleans, for which I believe I took bis receipt. The book9 will show the precise amount.

26th. "While Orman & Young and Rufus- Sewall were endeavoring to effect the trade before alluded to, did Rufus Sewall have an opportunity of looking at the books and papers of Orman & Young, and did he or not examine and calculate for himself, and while Orman was gone to New Orleans in April or May, 1828, was not Rufus Sewall at Webbville for three or four weeks, and was he not frequently in the store examining the books, notes, &c., of Orman & Young, and did he not at this time consult you respecting the profits of the business previously done, and that might in future be done ?

Ans. During Mr. Sewall’s stay at Webbville, in April, 1828, as well as at all other times when I was in the store, he had free access to the books and papers belonging to the concern. lie was there a day or two in Mr. Orman’s absence to New Orleans, but whether he examined or made any calculations I do not recollect. Mr. Sewall and myself frequently conversed upon the profits of the business previously clone by Orman & Young, and the prospect of doing a profitable business by a separate concern, to be established at Webbville, which was then contemplated.

2Yth. What did Rufus Sewall say to you respecting the old business of Orman & Young, and what did he say to you respecting the then business of Orman & Young ?

Ans. I don’t recollect of his saying any thing particularly more than what I have stated.

28th. During Orman’s absence to New Orleans, in April, 1828, did or did not Rufus Sewall say to you that he must have some business going on in this section of the county, and with that intention make a proposition to you to join him and his brother Charles A. Sewall, in business, he furnishing all the capital ?

Ans. Rufus Sewall did make a proposition to me, in 1828, to join his brother, Charles A. Sewall, in business, he furnishing all the capital and facilities for carrying on ail extensive business.

29th. Do you know that when Orman & Young made out their memorandum for goods for fall aiid winter stocks, that that memorandum was forwarded to William Taggard & Co., New York, to be filled by them, and though Or-man & Young knew that Rufus Sewall was or would be in New York, they did not address him on the subject?

Ans. Orman & Young did forward to William Taggard & Co., in the summer of 1828, an order for fall and winter goods, which they deebmed stipplymg, and this circumstance was attributed by Mr. Orman to some unfavorable representation made to them by Mr. Sewall, who was then supposed to be in New York. Orman & Young did not, to my knowledge, address Mr. Sewall on the subject of the order.

30th. Did Rufus Sewall write to you in July or August, 1828, requesting you to act as his agent, and who might, if necessary, act in conjunction with James Webb, Esq., in effecting a settlement with Orman & Young, and is not both his letters to you and your answer in return, now attached to your answers to the interrogatories now filed in the clerk’s office of the Superior Court in this county, in the case of Orman & Young vs. Rufus Sewall and E. J. Bower, in Chancery; and is not also the estimate or trial sheet attached thereto, in the handwriting of Rufus Sewall ?

Ans. He did. They are I suppose, and it is.

31st. Do you know that after Rufus Sewall returned to Webbville, in December, 1828, many attempts were made to effect a settlement of the business of Orman & Young and Rufus Sewall, between themselves, all without success, and after laboring two or three weeks, ended without doing any thing ?

Ans. I do not know it but so understood it from Mr. Sewall.

32d. Do you or do you not know that after December, 1828, a proposition was made, and calculations and estimates we're roughly made tor a lumping and general sale by Orman & Young to Rufus Sewall, and during the whole of the time that the negotiation for said trade was going on, did or did not Rufus Sewall have free access to the books, notes, &c., of Orman & Young, and examine and calculate for himself, and did lie' consult you upon all subjects and at all times when he entertained doubt in any matter^ and were you consulted with regard to the nature, situation, amount ashd solvency of the debtors to Orman & Young, including all the business done both before and after 7th March, 1828, and with regard to the value of property of every description ?

Ans. I know but little tlmt’took place While the negotiation was pending, except what I learned froin Rufus Sewall. He informed life of their progress from time to time, and consulted me on the business generally, and on particular points wherein he entertained doubts, and on which he wras ignorant. I don’t know whether Rufus Sewall had free access to the books, papers, &c., during this time, as I was-seldom, if ever, in the store, but heard no complaint of Mr. Sewall of the contrary. I don’t recollect that he consulted me as to the value of the property, but believe he did.-

83d. Was there any inventory of the goods that Orman & Young had on hand taken, or were they put down at a lump, without measuring, weighing, &c., at the time they sold out to Rufus Sewall, and was it the same with cotton, corn, bacon, horses, mules, negroes, gin-house and lot, &c. ? Was or was not the foregoing put down at their estimate value at the time the sale was made, and did Rufus Sewall consult you upon all these subjects %

Ans. No inventory of the stock on hand was taken at the time of the trade, as I ever knew or heard of from either party, but have always understood from both parties that ihe goods were roughly estimated at, I believe, seven thoiisand dollars, including those at St. Andrew’s Bay. All the other property was estimated in the same way, with ihe exception of the notes, accounts, &c., which I supposed to have been as correctly ascertained from the books and papers as they could be under the circumstances.

34th. Do you or do you not know, that from the situation of the books, then being behind in posting, &c., that it must have been almost impossible from their situation and the extent of business and amount of debts due to Orman & Young to hate got any thing like accuracy in the amounts in the time this trade was in its negotiation to completion ?'

Ans. It would have been extremely difficult, if not impossible to arrive at anything like the correct amount due Orman & Young iii the time the trade was negotiating.

35th. Did you or not hear Rufus Sewall say that he did hot expect anything like accuracy in this lumping business, arid that Ornian & Young had proposed to throw in five thousand dollars to cover all bad and doubtful debts, and also all errors that might or could possibly arise in the hurry in which the estimates were made, as well also as to compensate for collections.; and do you believe to the best of ydur knowledge, thatthe sum of five thousand dollars would cover all bad and doubtful debts, errors, &c., that have arisen from the biisiness?

Ans. I don’t distinctly recollect of hearing Rufus Sewall say anything on these points, but have always understood,- and have not heard it contradicted by either party, that five thousand dollars were thrown in to cover bad debts, errors and small amounts due by the concern, which sum 1 thought amply sufficient for that purpose, and from all I know, I believe it will be sufficient.

36th. Did you understand that the trade was a general and lumping one, or of a specific nature % What was the nature of the trade ?

Ans. I understood from both parties that the trade was a general and lumping one, and that the estimate was made out for the purpose of arriving as near to the value of whole concern as they could, without measuring, weighing or counting any thing.

37th. Did Orman & Young make and execute their bill of sale or transfer, to Rufus Sewall, of the notes, accounts, goods and property of any description owned and claimed by them, excepting the amount of seventeen thousand five hundred dollars, and the amounts of their individual accounts in the books, without claim, drawback or recourse on them in any way, and did you subscribe as a witness to the same, and when was said bill of sale or transfer made, executed and delivered ?

Ans. They did. I was a witness to the same, as well as I recollect, on the 14th of January, 1828, when it was also delivered.

38th. Are the books and papers that Orman & Young had in their possession at the time the sale was made, and that were transferred over to and left in the possession of Rufus Sewall, that are material, now here before the auditors, and state what are absent ?

Ans. I believe all the books belonging to the concern of Orman & Young were delivered up to R. S. Sewall at the time of their trade, some of which I have seen in the possession of the auditors, viz: the cotton-book, kept at St. Andrew’s Bay, and the last note-book kept at Webbville.

39th. Do you know that there was the sum of thirty seven dollars or thereabouts, short of the amount that Orman & Young were to receive, on comparing-the notes and accounts they took with the list, they excepted in the bill of sale or transfer ?

Ans. On the 14th January, when the papers were signed and exchanged, Mr. Orman observed to Mr. Sewall that the notes, accounts, &c., which he had received, fell short of the amount agreed upon, by about thirty-seven dollars, which Mr. Sewall said he would settle at any time.

40th. Do you know that in II. Haley’s account, taken by Orman & Young, they took the whole amount of the debt, without deducting from it the credit that stood fair upon the ledger ?

Ans. I do ; and the credit was thirty dollars as well as I recollect.

41st. Do you know that Orman & Young credited John Brett, sr., on his note that they had taken for cotton that was delivered after the sale of the gin-house, and how much, and that the credit was then made because it had been the previous understanding with said Brett, that what cotton he delivered was to be applied on his notes ?

Ans. I have but a faint recollection of this circumstance, and believe I merely heard of it.

42d. Do you know that Rufus Sewall purch