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more than 15 years before he testified? There never was any suit brought distinctly based on the agreement now set up, until the prns. ent suit, brought more than 23 years after the agreement is alleged to have been made, and more than 15 years after the executors were fully notified by Maffitt, acting for and by the direction of Chouteau, of the claim made by Chouteau. That there were some letters which Mr. Barlow saw, and the contents of which he believes he states correctly, is not to be questioned; but, in view of all the testimony in the case, it cannot be held that the agreement set up as contained in the letters is proved with sufficient certainty to make it the foundation of the decree made by the circuit court.

It is proper here to refer to another matter. At the time of Sanford's death, in May, 1857, he was an equal partner with Pierre Chouteau, Jr., in the firm known as Chouteau, Jr., & Co., of New York; and he was also a partner, together with Pierre Chouteau, Jr., and three other persons, in the firm of P. Chouteau, Jr., Sanford & Co. In October, 1858, negotiations were begun between P. Chouteau, Jr., and Messrs. Barlow and Gebhard, as executors of Sanford, for a compromise of the affairs of those two firms. The executors, at the time, claimed that they had a right to a receivership of the assets of all the firms in which Mr. Sanford had been interested. On October 13, 1858, Chouteau, being in New York, prepared and verified a petition addressed to the surrogate of New York county, wherein it was stated that the business of P. Chouteau, Jr., & Co., of New York, had resulted in heavy losses, owing to unfortunate operations undertaken in the life-time of Sanford; that the business of P. Chouteau, Jr., Sanford & Co. had produced large profits; that the accounts of P. Chouteau, Jr., & Co., of New York, had been made up as accurately as could be done; that, under the most favorable aspect, there would, on the winding up of the affairs of that firm, remain an indebtedness: from Sanford to the petitioner of not less than $363,323.61; that the amount which Sanford's estate would receive from the firm of P. Chouteau, Jr., Sanford & Co. would not exceed $198,558.06; that the petitioner was willing to accept the balance of the share of the estate of Sanford in the assets of the firm of P. Chouteau, Jr., San. ford & Co., in compromise and satisfaction of all his claims against the estate of Sanford; and that this compromise would result in an advantage to the estate of Sanford in a sum not less than $164,765.55. The petition was not presented to the surrogate, but the negotiations were continued, and, in October, 1859, the executors of Sanford

presented a petition to the surrogate, verified by Mr. Barlow, containing the same statements as the Chouteau petition, and, by an order made in November, 1859, by the surrogate, the executors were authorized to carry out the compromise on the terms above mentioned, as is stated in the bill in this suit. Then Chouteau, on December 1, 1859, executed the release stated in the bill. That release contained at its close this clause:

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“Nothing herein contained is to affect the rights which the said Pierry Chouteau, Jr., now has, either as surviving partner or by assignment, to collect all the assets of any firm formerly existing at St. Louis, in the state of Missouri, in which the said John F. A. Sanford was formerly a partner, for his own sole use and benefit, according to the terms agreed upon on the retirement of said John F. A. Sanford from said firms, or to affect or impair the right of the sail Pierre Chouteau, Jr., to said assets."

The executors of Sanford knew, from this reference in the release of December 1, 1859, that some terms had been agreed upon on the retirement of Sanford from the St. Louis firm. If the letters in their possession showed as distinctly as is now claimed what those terms were, it was easy to ascertain those terms from the letters. Instead of doing so, we find Gebhard, in his letter to Maffitt of September 15, 91860, asking Maffitt to furnish the executors with a copy of the agreement with Sanford referred to in Chouteau's release of December, 1859, as having been made when Sanford retired from the St. Louis firm.

As the case of the plaintiffs depends upon their affirmatively establishing the agreement set up, what most directly bears upon its existence has been especially alluded to. But the whole course of the evidence in the case fortifies the conclusion at which we have arrived. We can, however, only summarize it. Sanford at all times regarded himself as a party in interest in the winding up of the affairs of the St. Louis firm, and of the "outfits” in the charge of Borup and Sibley. He never claimed any independent interest in the Minnesota lands. The other copartners, after 1852, sent to him accounts of the affairs of the firm, and treated him as interested in its liquidation and entitled to know about such accounts. The arrangement really was that the "outfits” in the upper Mississippi under the charge of Borup and Sibley, and which were part of the business of the dissolved firm, should continue to be carried on as part of that business till they could be wound up. All lands of Minnesota were an outcome of those outfits, and were thus a part of the assets of the firm. Sanford's interest in those outfits was continued, but it remained subject to the debts of the outfits and to the debts of the firm. Pierre Chouteau, Jr., acted always in accordance with that view. His son, Charles P. Chouteau, always had that understanding of the arrangement. The clause before cited, at the end of the release of December 1, 1859, in saying that the release is not to affect the rights which Chouteau “now has” to collect all the assets of the St. Louis firm for his own use and benefit, or to affect his right to those assets, may be very well satisfied by applying the word "now" to the

“ condition of things then existing, and to the claims set forth in the complaint in the suit in the state court of Minnesota, brought in February, 1861. He had individually advanced large suins, before that time, to pay the debts of the firm, and undoubtedly contemplated a deficiency of assets, including the real estate in Minnesota. That real estate was then heid by him as part of the assets of the dissolved. firm, and he always afterwards honestly and faithfully treated it as held by him in trust to liquidate the debts of that firm. It was substantially the only resource in his hands in December, 1859, to repay him his advances. If the two letters then in the possession of Sanford's executors really showed such an agreement as they now claim, it is incredible that they would have accepted the release from Chouteau, with its comprehensive reservation of assets to Crouteau, and not have insisted on excepting from the assets the Minnesota real estate, which at that time was clearly assets of the firm. The entries in the books kept at St. Louis confirm the foregoing view.

On the whole case, we are of opinion that, after the dissolution of the St. Louis firm, the members other than Sanford were entitled to collect and dispose of all its assets, including the Minnesota “outfit” and the Minnesota lands, to liquidate its affairs, without the interference of Sanford; that all claim on their part against Sanford individually was relinquished, leaving recourse only to those assets; and that, if there should be any surplus of those assets, after paying the debts of the firm and the advances of any of the other partners therefor, Sanford's executors would be entitled to his proper proportion of such surplus.

No judicial accounting has been had on the basis of the rights of the parties as we have defined them. The bill prays that the defendants may account touching the affairs and property of the copartner. ship, and touching the proceeds of any such property. We think the plaintiffs are entitled to such an accounting, and are not barred from it by laches or by the operation of any statute of limitations. If necessary, the circuit court can, in its discretion, allow the pleadings to be amended, with a view to the attainment of justice, on the principles we have laid down. We do not deem it proper now to indicate any rule of accounting in respect to the lands which were not sold and conveyed by Charles P. Chouteau and Julia Maffitt to parties other than the representatives of Pierre Chouteau, Jr., Sarpy, and Sire, but leave that question to be determined by the circuit court, on full consideration. As to the lands which were sold and conveyed to parties other than such representatives, the liability should be only for the sumg-actually realized in good faith from the sales. The accounting may include the other remaining assets of the firm, if any.

The decree of the circuit court is reversed, and the case is remanded to that court, with direction to enter a decree in accordance with this opinion, and to take such further proceedings as may be in conformity therewith.

(110 U. S. 304)

WABASH, St. L. & P. Ry. Co. v. KNOX.

January 28, 1884.)



In Error to the Circuit Court of the United States for the Southern District of Illinois. On motion to dismiss.

Vespasian Warner, for motion.
H. S. Greene, Wm. Brown, and Edw. P. Kisby, in opposition.

WAITE, C. J. The judgment in this case was for $5,237.15, but the record shows in many ways that of this amount $727.42 was admitted to be due. A formal tender of that sum was made on the twenty-sixth of February, 1883, and the money deposited in court for Knox, the plaintiff, where it remained until the fourteenth of March, nine days after the judgment was rendered, when it was withdrawn by the railroad company, without prejudice, on the order of the court, and with the consent and agreement of Knox. The bill of exceptions also shows an admitted liability of the company for the amount of the tender. The case is, therefore, in all material respects, like that of Tintsman v. Nat. Bank, 100 U. S. 6, where the writ was dismissed, although the judgment was for $8,233.59, because, by an agreed statement of facts in the record, it appeared that the defendant admitted he owed $5,099.59 of the amount recovered. To the same effect is Jenness v. Citizens' Nat. Bank of Romeo, ante, 425. The amount in dispute here is no more than was in dispute below, and that was less than $5,000.

The motion to dismiss is granted.

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(110 U. S. 222)

JENKINS, Assignee, etc., 0. LOEWENTHAL and others.

(January 21, 1884.)


REV. ST. $ 5057.

In Error to the Supreme Court of the State of Illinois.
W. T. Burgess, for plaintiff in error.
Julius Rosenthal and A. M. Pence, for defendants in error.

WAITE, C. J. This suit was brought by Robert E. Jenkins, as as. signee in bankruptcy of Samuel J. Walker, a bankrupt, to recover certain lands conveyed by the bankrupt to Eli Kinney, on the alleged ground that the conveyances, though absolute on their face, were intended as mortgages. Two defenses were interposed among others, one that the defendants, who are the present owners of the property, are innocent purchasers for a valuable consideration, without notice of any outstanding equities in the assignee or the bankrupt; and the other that the suit was not brought within two years after the alleged cause of action accrued to the assignee. Rev. St. § 5057. Either of these defenses, if sustained, bars the action. The second involves a federal question, the other does not. The court in its decree sustained them both, and, among other things, found as a fact that the defendants were innocent purchasers for value. As this finding is broad enough to maintain the decree, even though the federal question involved in the other defense was decided wrong, we affirm the decree, without considering that question or expressing any opinion upon it. Murdock v. Memphis, 20 Wall. 590, sustains this practice. Affirmed.

· (110 U. 8. 217)


(January 21, 1884.)


In Error to Supreme Court of California. No brief filed for plaintiff in error. A. Chester, for defendant in error. *WAITE, C. J. The counsel on both sides stipulated in writing to* submit this case under rule 20. The stipulation bears date November 15, 1883. It was filed here on the twelfth of December. By its terms the counsel for the plaintiff in error was to have until the twelfth of December to serve and file his printed argument; the coun. sel for the defendant in error until the twenty-fifth of December to serve and file his printed argument; and the counsel for the plaintiff in error 10 days to reply. No argument has been filed in behalf of plaintiff in error, but one was filed in behalf of the defendant in error on the fifteenth of December. On the last day for submitting cases under the rule, which was after the expiration of the time the plaintiff in error was entitled to for his reply, the defendant in error submitted the case under the stipulation. In Muller v. Dows,94 U. S. 277, it was decided that stipulations of this kind between counsel might be enforced, and that they could not be withdrawn by either party without the consent of the other, except by leave of the court upon cause shown. We therefore take the case as submitted under the rule, although there is no argument for the plaintiff in error, and without passing specially upon the several assignments of error, which were returned with the transcript in accordance with the requirements of section 997 of the Revised Statutes, affirm the judgment.

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