Washtenaw County MI Archives Court.....Ramsdell, V. Millerd 1837
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Source: Cases In Chancery
Written: 1837

CASES IN CHANCERY
SECOND CIRCUIT.


Norton R. Ramsdell and others v. Jesse Millerd and others. Jesse Millerd v. 
Norton R. Ramsdell and others. (Cross-bill.)

Answer, when responsive to bill. Complainant, by his bill, averred his right 
to certain shares in a partnership, purchased by him of the heirs of a former 
partner. The answer of defendant set up an agreement by which these shares 
were to be purchased by complainant for himself and defendant jointly Held, 
that as to this agreement the answer was not to be regarded as directly 
responsive to the bill, and, therefore, the agreement was not proved by it.

Contract for lands: Specific performance. If an agreement for the purchase of 
lands be vague and uncertain, or the evidence in support of the same 
unsatisfactory, a court of equity will not enforce it, but leave the party to 
his remedy at law.

Parol contract for lands: Part performance. Part performance, to take a parol 
contract for the purchase of lands out of the statute of frauds, should be of 
unequivocal acts that confirm the existence of the contract (a.)

Continuance of partnership business after death of one: Mights of 
representatives of deceased partner. Where one of several partners dies and 
the business of the copartnership is carried on by the surviving partners 
without the assent of the representatives, they have as a general rule their 
election to demand interest on the amount of the share of the deceased, or to 
take a share of the profits; but where the interest of the deceased partner 
had become vested in one of the surviving partners, who consented to the 
continuance of the copartnership, it was held the rule did not apply, and his 
only right was to share as partner.

The original bill in this case was filed in June, 1837, by Salmon H. Matthews.

In July following, a cross-bill was filed by Millerd, the principal defendant 
in the original suit; answers were put in to the two bills by Matthews and 
Millerd respectively; as to the others, the bills were taken pro confesso.

Subsequent to the putting in of the answers in both cases Matthews died, and 
the suits were revived and continued by and against his personal 
representatives, Norton R. Ramsdell and Asa Williams, administrators, and 
Arabella Matthews, administratrix.

The case will sufficiently appear from the cross-bill and answer.

It appears from the cross-bill that in November, 1835, Matthews and Edwin 
Bond, one of the defendants, entered into a copartnership with Millerd. The 
articles of copartnership wTere reduced to writing, and are as follows:

"This article of agreement,, made the first day of November, 1835, between 
Jesse Millerd, late of Auburn, N. Y., and Salmon H. Matthews and Edwin Bond, 
of Dexter village, M. T., witnesseth, that the said parties have this day 
mutually entered into a copartnership, under the firm of J. Millerd & Co., for 
the purpose of carrying on the mercantile business and the grist mill and saw 
mill business, and all other business which may be, by said firm, considered 
necessary in connection with said branches to promote the interest of said 
firm, for the term of four years from the above date, on the following terms, 
viz: their capital is to be $21,000, or $7,000 to each person.

"The said Matthews and Bond now own in the said village of Dexter, a grist 
mill and saw mill and tavern stand, and the necessary buildings thereon, 
containing about five acres of land, more or less, according to their deed of 
said property, executed to them by Samuel W. Dexter, on the 7th day of April, 
1834, which property, together with the appurtenances and water privileges 
thereunto belonging, is estimated at fourteen thousand dollars, which the said 
Matthews and Bond are to furnish as a capital for the benefit of said firm, as 
their shares, and for which, whatever may be due, or to become due to said 
Dexter, they, the said Matthews and Bond, are themselves to cause to be 
punctually paid to the said Dexter, without cost or inconvenience to the said 
firm or the said Millerd.

"And the said Millerd is to furnish seven thousand dollars worth of goods as 
his share of said capital stock of said firm, and the said partners are 
mutually bound to each other to do and perform all necessary services in their 
power, for the promotion of the above business. All the loss or gain to said 
business is to be mutually shared by the said partners, and all necessary 
expenses in said business are to be borne by the said firm, from and after the 
said date first above mentioned.

"And, as the said Matthews and Bond are indebted to the said S. W. Dexter for 
the said premises and for the payment of said debts, they have executed a bond 
and mortgage to the said Dexter for payment thereof, and as the said Millerd 
on his part furnishes his share of the said capital stock at the commencement 
of said firm: Now, therefore, it is hereby agreed by said Matthews and Bond, 
that they will, for the purpose of securing said Millerd against any loss he 
might sustain by their failing to pay for the said premises, according to the 
condition of said bond and mortgage, execute to him, the said Millerd, a 
warranty deed of the said premises; and they, the said Matthews and Bond, also 
agree, that in case of their failure *as aforesaid, to 375 make payment for 
said premises whereby the said Millerd's interest shall be injured; that then, 
in such case, he shall have a claim to secure himself from any personal 
property in the possession of said firm, or from the property owned by either 
or both of the said Matthews and Bond in their private capacity.

"In witness whereof, the said parties have hereunto set their hands and seals 
at Dexter village, on the date first above mentioned, in presence of Chas. D. 
Millerd.

(Signed) "J. Millerd.
S. H. Matthews. Edwin Bond."

The cross-bill states that Matthews and Bond were at the time of executing 
said agreement joint owners of said real estate, and copartners in the grist 
and saw mill business and tavern, under the firm and style of Matthews & Bond; 
that said firm were then indebted to different persons in a considerable 
amount; that by the formation of said copartnership the firm of Matthews & 
Bond was dissolved.

That Millerd did furnish his share of capital according to agreement, and the 
goods were placed in the store of the firm.

That Matthews and Bond did, in pursuance of the agreement on their part to 
furnish, etc., on the 12th of January, 1836, execute to Millerd a deed of one 
undivided third of said real estate.

That at the time of the execution of said agreement, said Matthews and Bond 
proposed to Millerd that he should become joint owner with them of another 
parcel of land in Dexter, on which was a dwelling house and store, etc. (the 
Brower lot); that Matthews and Bond then held a deed of same, but had not paid 
the purchase money; that it was agreed that Millerd should own one-third of it 
and pay one-third of the said purchase money; that the same was included in 
the said deed from Matthews and Bond to Millerd; that part of said purchase 
money had since been paid, out of the partnership funds, the remainder not yet 
paid and not all due.

Sets out the covenants in said deed on the part of Matthews and Bond, which 
are:

1. Seizin in said Matthews and Bond.

2. Freedom from encumbrances, except a mortgage to Dexter of $10,750.

3. That said Matthews and Bond would pay said mortgage and indemnify Millerd 
against the same.

4. Right of said Matthews and Bond to sell.

5. Covenant of warranty.

That said deed was intended as an absolute conveyance of said one-third; that 
said Matthews and Bond have never executed any deed as security to Millerd, as 
against the Dexter claim.

That the partnership commenced immediately on executing the agreement, and 
that the goods were offered for sale in the store of the firm ; that the same 
had been replenished from time to time, by and on account of the firm ; that 
Matthews and Bond had at all times participated in the profits thereof.

That Matthews and Bond were not acquainted with the mercantile business, and 
therefore chose to attend to the other branches of the business of the firm, 
and that Millerd attended principally to the store.

That regular invoices were made of the $7,000 worth of goods, and copied into 
a book in the store; and that similar bills were made of the goods since 
purchased; and that all of the bills or invoices were kept in the store with 
the other papers of the firm; that books of account and a cash book, etc., 
were kept in the store, and remained there up to 27th of June; and that 
Matthews and Bond had access to them at all times; that said invoice book was 
delivered to Matthews at his request; that Matthews carried it away, and still 
has it.

That in the summer of 1836, an addition was built to said tavern house by the 
firm, and out of their funds, at an expense of about $1,000; that during the 
same year a store was in the same way built on said five acres of land, at an 
expense of about $3,000; that no account was kept of the expense; that about 
the 1st of September, 1836, a contract was made by Millerd and Matthews in the 
name of the firm with one J. Ranney to sell him a village lot for a tannery, 
being part of said five acres, which contract the parties agreed to reduce to 
writing at some future time; that the same has not yet been done, but that 
said Ranney has taken possession of the lot by the concurrence of said 
Matthews and Millerd, and paid part of the purchase money, for which receipts 
were given in the name of the firm, and the money appropriated to the use of 
the firm; charges that all this was done with the consent and approbation of 
Matthews, and that Bond, during his lifetime, and Matthews and Millerd did 
agree during his lifetime to build said addition and said store.

That said firm did, about the 12th of January, 1836, purchase of S. W. Dexter 
certain premises and water privilege, contiguous to the village on Huron 
river, for $3,000, and took a warranty deed; that the whole of the purchase 
money is yet unpaid and not yet due ; that at and previous to the commencement 
of the partnership, Matthews and Bond were negotiating with Dexter for the 
purchase from him of one-half the unsold lots of Dexter village, and also 
forty of fifty acres of land north of said village; that it was agreed between 
Matthews and Bond and Millerd, that the latter should be admitted to 
participate in said purchase; that the same was not consummated during Bond's 
lifetime, but that after his death Matthews and Millerd completed the purchase 
in their own names, and a contract for the same was executed by said Dexter, 
Matthews and Millerd, thereby Dexter obligated himself to execute to Millerd 
and Matthews a deed of the same upon the payment of $2,000 ; that the same is 
still unpaid ; that the said premises have risen in value and are now worth at 
least $7,000.

That in January, 1836, Millerd had occasion to go to the State of New York 
after his family, and to purchase goods for the firm; that it was agreed 
between all the parties that he should go, and that the business should be 
left in charge of Matthews and Bond, and the clerks ; that Bond died during 
Millerd's absence, in April or May, 1836; that Millerd was on his return when 
he heard of his death, and immediately returned.

That after Bond's death, Millerd and Matthews agreed to continue the business 
of the partnership under the same style and firm as before, and for their 
joint benefit; that they did so; that Bond left certain heirs; that soon after 
his death it was agreed between Matthews and Millerd, that Matthews should 
purchase of the heirs their shares or interest in said concern, and
pay for the same out of Matthews' own funds; that Millerd should pay Matthews 
one-half of the purchase money and expenses; that Matthews should proceed to 
buy out the same on the best terms he could, in the names of Matthews and 
Millerd, and for their joint benefit; that Matthews should be allowed to 
absent himself a sufficient time for that purpose.

That in September or October, 1836, Matthews left Dexter to go to 
Massachusetts for the purpose of buying out the heirs living there, for their 
joint benefit.

That Matthews did fraudulently purchase of some of the heirs their interests, 
and took deeds therefor in his name alone; and that Matthews claims that by 
virtue of said deeds he is entitled to six undivided ninths of said real 
estate; and in right of his wife to a life estate in another ninth; and also 
claims to be beneficially interested in seven-ninths of the personal property 
of Bond, and that these claims are founded on the following deeds and releases:

From Richard Bond and wife; from S. W. Dexter and wife; from J. Carrier and 
wife; from Q. Hitchcock and wife; from A. Williams and wife; from Hannah Bond.

The names and residence of Bond's heirs are given; that Russel Cooley is 
guardian of certain heirs named, who are minors.

That Matthews has been appointed administrator of Bond.

That soon after Bond's death, his brother King E. Bond died, leaving his wife 
and two children heirs; R. Cooley is his administrator.

That since Matthews' appointment as administrator of Bond, he and Millerd have 
continued the business as before.

That Millerd has never drawn from the partnership more than his share of the 
profits.

That soon after Matthews' return from Massachusetts, Millerd learned for the 
first time that Matthews had taken the deeds in his own name; that Millerd 
trusted to his good faith, and was not alarmed, until about February, 1837, 
when in a conversation with Matthews, Millerd learned for the first time that 
he intended all of said, purchases for his sole benefit.

That the real estate has risen in value greatly, and is worth, besides the 
erections recently made, $17,000.

That Matthews, as part of the consideration of said purchases, assumed the 
debts due from the firm of Matthews & Bond.

That the amount of consideration expressed in the several deeds from the heirs 
is $900; that Millerd has offered to pay to Matthews one-half of all the cost 
of said shares, and demanded a deed of one-half thereof; that Matthews refused 
to make the deed.

That about the 10th of June, 1837, Millerd was taken ill and was confined to 
his house two weeks; that when he left the store there was a large stock of 
goods on hand—about $10,000 worth-account books, bills, notes, etc., etc, to 
the amount of $15,000 or $20,000, and about $2,000 in cash.

That about the 19th of June, 1837, Matthews took from the store $1,000, for 
the purpose of paying a bank note at Washtenaw bank due from the firm; that 
Millerd learned afterwards that he had not paid the same.

That on Sunday evening, June 25, Matthews removed the books and papers from 
the store, and also the keys to the safe, and on Monday Matthews dismissed the 
clerk and employed another.

That at this time there was in the store about $1,050 in cash.

That during Millerd's illness, Matthews took and appropriated to his own use 
large sums of money.

That on the 28th of June Millerd called at the store, and was denied access to 
the books by Matthews, and prevented by force from making any examination.

That there is no person in the store or mills to look after the interests of 
Millerd; that Millerd is unable to attend to the same in person; that Matthews 
refuses to permit any one, etc. ; that the cash receipts in the store are 
about eighty dollars per day, and that on the evening of June 27th there was 
in the store $800 in cash.

That Matthews is illiterate, and incompetent to carry on the business of the 
firm,

Prays for an account; that Millerd may be decreed entitled to one-half of the 
profits since Bond's death; for the establishment of said deed from Matthews 
and Bond to complainant as an absolute conveyance; that Matthews be decreed to 
convey to complainant one-half of the real estate purchased of Bond's heirs; 
for a partition of the real estate or sale; for a dissolution of partnership, 
and for the appointment of a receiver; for an injunction upon Matthews.

The answer of Matthews admits the copartnership and the articles.

Admits that previous to and at the time of executing said articles, the 
defendant and Edwin Bond were joint owners of the five acres of land in bill 
mentioned, and were copartners in grist and saw mill and tavern stand under 
the firm of Matthews & Bond, and that the firm were then indebted as in the 
bill mentioned, and that by the formation of said firm of J. Millerd & Co., 
the firm of Matthews & Bond was dissolved.

Denies that complainant ever furnished as his share of the capital stock 
$7,000 worth of merchants' goods; admits that complainant did, shortly after 
the execution of said articles, furnish and place in the store of the firm a 
stock of goods not exceeding, as defendant verily believes, $4,000 or $5,000 
worth, and by far the greater proportion thereof were remnants and other 
refuse goods of an old stock unsuitable to the demand, and different in 
nature, quality and value from, what the complainant had promised to put into 
the partnership, and such as did not, according to their agreement, entitle 
him to one-third of the rents of the mills and tavern, the said agreement in 
fact imposing on complainant an obligation to furnish a substantial and fresh 
stock of goods suitable to the wants of the country, and worth at first cost 
prices and transportation $7,000.

Admits that after the execution of the articles, and in pursuance of the 
agreement therein, defendant and wife and Edwin Bond executed a deed in fee 
simple of one-third of the five acres as in the bill stated, but says that the 
deed, though absolute in terms, was not intended to be so in fact, but only to 
operate as a security to indemnify complainant against the claim of S. W. 
Dexter in the articles mentioned; and to a participation of one-third of the 
rents and profits of said property for four years; and complainant acquired an 
estate therein only for the aforesaid purposes upon the express condition that 
money to pay Dexter should be drawn from the partnership funds, and on the 
faith that complainant would fully comply with his aforesaid contract by 
delivery of the stipulated stock of goods, etc., and the property was 
estimated at a price below its real value, on the further faith that the goods 
would be of the quality and prices before mentioned; and states that the deed 
was drawn by complainant; does not recollect what the covenants were.

Admits that at the execution of the copartnership articles, defendant and Bond 
proposed to complainant to become jointly interested with them in the Brower 
lot; that defendant and Bond then held a deed therefor as in bill stated, and 
subject to the payments therein mentioned, for which three weeks' notice was 
given. That complainant, at the time mentioned in bill, concluded to purchase 
and pay as therein stated, and that the first of said notes has been paid; the 
others are unpaid, and only one due.

That defendant cannot state positively what covenants are contained in the 
deed, but believes they are as set forth in the bill; denies that defendant 
and Bond, or either of them, have executed to complainant a warranty deed of 
the premises mentioned in copartnership articles except as security; avers 
that there
never was any conversation between the parties by which complainant was 
entitled to any other deed than the one he received, nor was there ever any 
complaint by complainant that he had not received all and every deed he was 
entitled to.

Avers that complainant has in fact received the deed mentioned in the articles 
of agreement and none other, and for the sole purpose therein mentioned, and 
he never demanded any other.

That the copartnership of J. Millerd & Co. commenced immediately on the 
execution of the articles of agreement, and goods of said firm were sold at 
their store and replenished from time to time from different places, but to 
what extent defendant cannot state; that defendant has received or expects to 
receive his own share of the profits, and also seven-ninths of those due to 
Bond at his death, to which he is entitled in virtue of the several 
assignments, as also two-ninths more which he has this day purchased, being 
all of said Bond's interest, but denies that complainant put in $7,000 worth 
of goods, or that defendant has shared in the profits of such an amount.

Admits that defendant and Bond were unacquainted with mercantile business, and 
that he chose to attend to the other branches of the business, and that 
cofnpiainant should give his attention to the store, intending thereby that 
such attention should be proper, etc., and that complainant would be 
responsible for such attention, but defendant avers that the store has been 
very inadequately and improperly attended by complainant and sons, to the 
detriment of the concern.

Denies that regular and correct bills or invoices were made of the $7,000 
worth of goods, so said to be furnished by complainant, and were copied into a 
book in the store ; denies that the stock was at all furnished. Defendant says 
he never knew until the time hereinafter mentioned; that an invoice or bill of 
any kind had been made by complainant of the goods which he did furnish ; says 
that no bills of the goods so furnished were ever made out by the persons who 
sold the same to complainant, as defendant verily believes, and if they were 
made out they were never shown to, or seen by defendant, and defendant 
believes and avers that there never was a just and true invoice made out by 
complainant, or on his behalf of said goods. But defendant admits that about 
the sixteenth of June last, complainant showed defendant a small book 
purporting to be an inventory of goods made out at Auburn, New York, which was 
made out chiefly in gross sums, omitting the details necessary to render it 
satisfactory, and to test its correctness; that the entire was made out by 
complainant without reference to original bills, but with a view to establish 
a particular result, and afforded no evidence of the actual amount; that this 
was all the invoice ever shown to defendant, and he believes the same was not 
completed until long after the commencement of the copartnership; that the 
defendant retained same in his possession a few days, when he returned it to 
complainant, or into his possession at the store, about the twentieth June 
last, and defendant believes the same is now in the store or in complainant's 
possession. Defendant believes that bills were made of the goods since 
purchased at New York and elsewhere, and that all of said bills have been kept 
with the other papers of the firm in the store.

Denies that regular books of account of all sales or credit made at said store 
were kept, or that any of the other books mentioned in bill were regularly 
kept, but admits that books purporting to be those in the bill mentioned, and 
for the time therein stated, were kept, not in a regular, business-like 
manner, but very irregularly, defendant believing that not more than one-tenth 
of the several accounts purported to be kept thereby were in fact entered on 
said books.

Admits that all the books were kept in the store, and were open to inspection 
of defendant and Bond, with exception of said invoice book, which was, at 
defendant's request, delivered to him for the purpose in the bill alleged, and 
was returned by defendant.

Denies that the defendant or Bond had the control of any of the books, 
although they were open to their inspection; they remained in the exclusive 
possession and under the exclusive control of complainant, or his sons, who 
acted as clerks in the store, and although they were nominally clerks of the 
company, yet they in reality consulted their father's interest in all cases 
when that was at variance with the interest of the other partners.

Admits the building of the addition to tavern and the store, both after Bond's 
death, at the time and expense stated in the bill.

Admits the contract of sale of a village lot to Julius Ranney as in bill 
stated; says that complainant's participation in said transaction arose not 
from his right as a proprietor in the lot, but from his interest as a partner, 
and of the firm having a temporary and qualified interest as before stated, 
which rendered his assent necessary.

Admits that said lot was taken possession of, and part of the purchase money 
paid, receipted and appropriated as in the bill stated, but that defendant 
consented to such appropriation not from any right of the firm thereto, but 
because same was small in amount; that at the time of the contract defendant 
told Ranney that the company could not give a deed, but that at some future 
time defendant individually would see that he received a deed.

Admits that the addition to tavern and store were built and paid for, and said 
lot sold and receipts for purchase money given in all particulars as stated in 
the bill, and that the parties therein mentioned did agree to erect said 
buildings.

Admits the purchase from Dexter as in the bill stated; that the deed is in 
defendant's possession ; the purchase money yet unpaid, and no part due at 
time of filing the bill, but defendant believes one payment has since become 
due.

Admits that at and previous to the commencement of partnership, defendant and 
Bond were in negotiation for the purchase of village property of Dexter as in 
bill set forth, and the agreement between complainant, defendant and Bond, as 
in the bill stated, and that the purchase was not consummated during Blond's 
lifetime, and states it never was consummated, but the agreement then made 
fell through, and a new bargain was made therefor after Bond's death ; that 
the premises were purchased by complainant and defendant, not in their 
copartnership character, but as individuals; admits that complainant and 
defendant did complete the purchase as stated in the bill, and that the 
contract was then in defendant's possession ; admits that the premises have 
risen in value; cannot say whether they are worth at least $7,000, but 
believes they are worth $5,000.

Admits that complainant had, as he alleged, occasion to go to the State of New 
York at the time and for the purposes mentioned in bill, and that defendant 
made no objection thereto, though he conceived complainant's going to be in 
violation of their copartnership articles; defendant regarded his departure as 
being caused in reality by the necessity of moving his family, and that the 
purchase of goods was only a pretext; that if such purchase was really 
necessary it was in consequence of complainant having failed to furnish his 
$7,000 worth of goods; that though there was no express agreement, as 
mentioned in the bill, in regard to conducting the business during 
complainant's absence, yet it was generally understood as unavoidably 
resulting from such absence that the store should be left in charge of the 
defendant, and Bond and the clerks; and that defendant and Bond should take 
charge of the other branches of the business, and that complainant should be 
permitted to take the journey.

Admits that Bond died at the time mentioned in the bill; defendant does not 
know whether complainant was on his return when he heard thereof, but admits 
that he did return soon after.

Admits that after Bond's death, defendant was under the impression from the 
representation of others that he was bound to continue the partnership to the 
end of the four years, and under that impression he did continue the business 
with complainant, without any new agreement, for their joint benefit and under 
the same firm name as before, and the business was continued and carried on as 
before; denies that it was under any new agreement independent of the original 
articles.

Admits that Bond left heirs; denies wholly any agreement or conversation in 
reference to the purchase of their rights for the joint benefit of complainant 
and defendant; that defendant has, since Bond's death, purchased of the heirs, 
and become entitled to the whole of Bond's interest, and that the same was 
purchased for his sole benefit.

Admits defendant's leaving Dexter at the time, and for the purpose in the bill 
mentioned, and that he procured from Bond's heirs, deeds and releases, to be 
executed to him in his own name, and that he claims as in the bill mentioned ; 
denies that his so doing was in violation of agreement, or with intent to 
deceive or defraud complainant.

Admits that defendant derives his said claims under and by virtue of the 
several deeds in the bill set forth.

Admits that Bond's heirs are correctly set forth in bill, and that defendant 
is administrator of said Bond, and that King E. Bond died intestate, leaving 
the persons named in the bill his heirs.

Admits that ever since defendant's appointment as administrator of Bond, he 
has continued the business with complainant; but defendant did so in his 
individual, and not in his official capacity as administrator.

Defendant believes complainant has drawn more than his share of profits, and 
therefore denies that complainant has never drawn more than his share.

Defendant cannot form any belief whether or not, soon after his return from 
Massachusetts, complainant learned for the first time that defendant had taken 
deeds in his own name, nor whether he relied on the good faith of defendant, 
and was not alarmed, etc., nor whether, until the conversation in the bill 
mentioned, complainant learned that defendant intended all of said purchases 
for his own benefit.

Defendant believes that complainant never entertained the least idea that any 
of said shares were purchased for his benefit.

Admits that since November, 1836, the real estate mentioned in the deed from 
defendant and wife and Bond to complainant has risen in value, independent of 
the erections thereon; defendant cannot say how much, or whether they are 
worth the sum mentioned in the bill.

Denies that defendant ever told complainant that, on the purchase of the 
rights of Bond's heirs, he assumed as part of the consideration of the 
purchases the payment of the debts due from the firm of Millerd & Bond, and 
that the consideration expressed in the deeds was the amount actually paid 
over and above the debts; that such was not the fact; but defendant admits 
that he may have told complainant that as part of the consideration he was to 
assume the debts, but the amount of consideration expressed in the deeds was 
inserted in a round sum, without regard to the sum actually paid, which in 
some instances exceeded the amount stated.

Admits "that the whole amount of consideration expressed in said deeds is two 
hundred and fifty dollars; but, for the reasons before stated, defendant 
wholly denies and repudiates the pretended claims of complainant to any 
participation in the property acquired by said purchases, and denies that 
complainant, by virtue of any agreement with defendant, and of any right as 
surviving partner, and by paying to defendant the half of the sums in the bill 
mentioned, or otherwise, would be entitled to half of said property, or any 
part thereof.

Denies that any tender was ever made as stated in the bill, but admits that, 
at or about the time stated in the bill, complainant did make the demand 
stated in the bill relative to said property, and that defendant refused.

Admits the illness of complainant, as stated in the bill, and that the store 
was left in care of his two sons, and there was in the store a large stock of 
goods. Does not know the amount, or of what they consisted. Also, books of 
account, notes, etc., together with a certain sum of money. Defendant cannot 
set forth the particulars or amount; all such matters remained under the 
control and management of complainant, as well during his temporary illness as 
before.

Admits that defendant did take the sum of one thousand dollars as stated in 
the bill, and for the purpose therein mentioned, and which was not a mere 
pretence, but that he did actually pay the bank note therewith.

Admits that defendant did enter the store in the absence of complainant and 
the clerks, as stated in the bill, and put into an iron safe therein the- 
books, notes, etc., and removed the key of the safe in which the money was 
kept, but all this was done in pursuance of the consequences of the writ of 
injunction, etc., and in accordance with the prayer of a bill which defendant 
was coerced to file by the conduct of said complainant, etc., and because 
defendant apprehended if he had notice of the issuing of the writ, he would 
seize upon the portable and valuable property of the firm, etc., and 
defendant, in order to protect them, locked them up, and after service of writ 
removed the same to his house, the complainant having obtained a key of the 
safe, and dismissed complainant's sons, as stated in the bill, because he had 
not confidence in them, and placed in said store a competent and trusty clerk, 
and assumed the entire control and management of the business; defendant 
submits that he was justified, etc., and exercised only his legitimate power.

Admits that at that time defendant received from the safe in said store, about 
sixteen hundred dollars.

Admits that during complainant's illness defendant took and appropriated to 
his own use various sums of money, as he was justified in doing by virtue of 
his rights as a partner, and by virtue of articles relative to the purchase of 
the Brower lot; all of which were entered upon the books; avers that the whole 
did not exceed the proportion of defendant.

Admits that on the twenty-eighth of June, defendant being in possession of the 
store, complainant did call at the store and requested as stated in the bill, 
and that defendant did refuse said requests, which he was induced to do 
because he wished to make an inventory thereof previous to the access of 
complainant thereto, whom he suspected of a design to alter the same and make 
entries thereon, which entries complainant did afterwards make as hereinafter 
stated, and defendant did not think complainant was entitled to have access to 
the books until they were in the hands of a receiver, and defendant removed 
them to his own house until a receiver was appointed, and then delivered them 
to him.

Denies that there was no person in the employment of the firm to take care of 
the interests of complainant; that defendant employed a trusty and competent 
clerk to act for the entire concern, and gave his own time and attention to 
the business, but defendant did, as stated in the bill, refuse to permit any 
person appointed by complainant to attend, etc.

Admits the receipt of money and the state of funds as stated in the bill.

Admits that defendant, though not an illiterate man, is unacquainted with the 
mercantile business.

Denies that complainant has any well grounded apprehensions of being defrauded 
by defendant.

Admits that no account was ever settled between them. Defendant avers that 
complainant has, during the partnership, applied to his own use sums of money, 
and exceeding his proportion, to an amount unknown to defendant; and that he 
permitted his sons, being minors, and irresponsible, to take out of store 
goods, and charged them to their account; and also that complainant furnished 
articles for the use of the concern, and charged more than they were worth.

Insists and avers that the partnership was dissolved by Bond's death, and all 
of complainant's right to a share of the profits of mills, etc., became 
extinct.

Admits that complainant, although not entitled to any participation in the fee 
of said real estate, is entitled to an account of the proportion of his funds, 
if any, drawn from said concern, for improvements of said estate; but 
defendant says that said sums should have been charged to him and Bond, and, 
if not already charged, should now be so charged, etc.

Admits the institution of proceedings in this court, as stated in the bill, 
and that a receiver has been appointed, to whom defendant gave up the 
premises, books, money, etc., and the receiver now conducts the entire 
business.

That complainant, having expressed anxiety to help the receiver, and been 
permitted to have access to the books, took advantage thereof to make some 
entries thereon, materially affecting the nature and statement of some of the 
accounts, and did the same in a clandestine illegal manner; defendant does not 
know the nature or amount thereof.

Defendant prays the dismissal of complainant's bill, and the relief prayed by 
the defendant's original bill.

General replication filed, and the case brought to a hearing on pleadings and 
proofs.

G. Miles and A. L. Millerd, for complainant.

Kingsley, Fraser and Romeyn, for defendant.

The Chancellor.—It is not necessary in this stage of these causes to enter at 
length into a detailed statement of the pleadings, and the very voluminous 
proofs and exhibits which the cases present.

The first question presented, which it is necessary to decide before the 
accounts are stated, is, did Millerd comply with the conditions of the 
articles of copartnership by furnishing goods to the amount of $7,000, and 
thus entitle himself to the one-third of the real estate, and to an equal 
share of one-third in the effects and profits of the copartnership. An 
inventory is exhibited, by which it appears that the cost of the goods 
furnished by him was $5,389.54, exclusive of the cost of transportation, 
insurance, etc., and that a general charge was added of thirty-three and one-
third per centum for freight, purchase of goods, insurance, etc., making 
$1,796.51, which two sums make in all $7,186.05.

It appears by the proofs in the cause that from eight to ten per cent should 
cover these charges.

It becomes necessary to determine the question whether the goods thus 
furnished were accepted and received by Matthews and Bond as a fulfillment of 
this part of the agreement on the part of Millerd. It may be proper to say, 
from my view of the terms of the contract, that if Matthews and Bond had 
dissented at the time the goods were furnished, and had refused to proceed 
further until the question of the amount to be charged for purchasing the 
goods, freight, etc., had been settled, and the deficit supplied, they would 
have been entitled to have the amount of goods stipulated for, at cost and 
reasonable charges and expenses, without any addition by way of profit.

But, from the testimony of King and C. D. Millerd, confirmed to some extent by 
that of John Williams, there are strong grounds of probability that the 
exhibit, containing an inventory of the goods, and in which this charge of 
$1,796.51 occurs, was the one used at the time the goods were received at 
Dexter.

The testimony of Cyrus Loomis of the admission of Matthews that Millerd had 
fulfilled on his part, confirmed, as it is, by the prominent fact that the 
deed of the one-third part of the property was executed by both Matthews and 
Bond some time after the goods were received, without any further stipulation 
or reservation, altogether furnish a very strong presumption that the parties 
themselves regarded this part of the contract as fulfilled and settled. 
Whatever may have been the fact, in a doubtful question of this kind, it is 
much the most safe to abide by the unequivocal acts of the parties themselves, 
than at this late period to attempt to open this matter.

That the parties executed and delivered the deed admits of no doubt.

As to the alleged agreement for the purchase of the interests of the heirs of 
Bond:

It is urged that this agreement is made out by the answer of Millerd, and that 
it is taken out of the statute of frauds by part performance. Millerd, the 
defendant in the first suit, and complainant in the other, insists, in his 
answer in the one case and in his bill in the other, that it was agreed 
between himself and Matthews, after the death of Bond, that the interests of 
the heirs of Bond should be purchased by Matthews for the benefit of both. 
This is denied in the most positive terms by the answer of Matthews in the 
second suit. It was insisted at the argument that Millerd's answer, being 
responsive to the bill and not disproved, must be taken as true. Matthews 
alleges, in his bill, his right to certain shares purchased of the heirs of 
Bond. This Millerd denies, and, by way of avoidance, sets up this independent 
contract by way of showing himself entitled to the one-half of these shares. 
This I am inclined to regard as not coming within the rule of being directly 
responsive to the allegations of the bill. It sets out a new contract, and 
should be proved. The testimony of the witnesses is not positive and 
conclusive. They do not testify as to the terms used by the parties in making 
the contract.

C. D. Millerd says, in general terms, that it was agreed that the interests 
should be purchased for the benefit of both, as he understood it—giving the 
understanding of the witness, and not the words used by the parties.

The testimony of B. King, as to the purchase, is still less explicit.

It seems strange that a transaction of this importance should have taken place 
without a written contract, or, at least, a verbal one more clear and 
explicit. It has rather the appearance of a conversation in relation to a 
contract, than a clear, definite and complete agreement.

No entry on the subject is made on the books. The money is paid entirely by 
Matthews; no charge is made to Millerd or to the firm; and the title is taken 
to Matthews individually.

The claim, as alleged, is for an interest in the entire shares purchased of 
the heirs of Bond. The testimony relates only to the shares of the heirs 
residing in Massachusetts, while several others were resident in the immediate 
vicinity of Dexter. It will be perceived that the contract is not proved in 
that clear, full and precise manner which has uniformly been required as the 
first step toward the establishment of a parol contract for the conveyance of 
lands.

If the contract be vague and uncertain, or the evidence to establish it 
insufficient, a court of equity will not enforce it, but will leave the party 
to his legal remedy. (Colson v. Thompson, 2 Wheat R., 336.) It was, however, 
insisted that there had been such unequivocal acts of part performance as 
would confirm the existence of the contract, and take it out of the operation 
of the statute.

These acts consist principally in certain improvements upon the property after 
the death of Bond, by the surviving partners, and without keeping an account 
of their expenditures. The rule is that the act of part performance must 
unequivocally result from the agreement alleged. (See Burtch v. Hogge, ante, 
31; Bomier v. Caldwell, ante, 67; McMurtrie v. Bennett, ante, 124.) It may 
have been so in this case; but this is not one of those cases where the acts 
must necessarily have resulted from this agreement, and are inconsistent with 
any other.

It will be perceived that, from the view I have taken of this portion of the 
cause, this is not a case of parol contract clearly proved and partly 
performed, which calls upon this court to decree a specific performance. It is 
not clearly and distinctly proved. It is positively denied by Matthews. The 
money was all paid by him, and no charge made, either to Millerd or to the 
firm. The title deeds were all taken in his name, and it at least presents 
such a case of doubt as admonishes this court of the danger of interfering to 
decree the performance of a contract which may never have had an existence.

Matthews, although he denies any new agreement, says he believed at the time 
he was bound to continue the partnership. It is not going too far, I think, to 
regard this to have been the understanding of the parties, as the interests 
were subsequently vested in Matthews, to accord to them an equal interest in 
the profits after the death of Bond.

Hence, it will result that, in taking the accounts, Millerd must be regarded 
as having fulfilled on his part the original agreement, and to be entitled to 
one-third of the real estate, and to one-third of the profits of the co-
partnership to the death of Bond, and that the accounts be stated to that 
period. That thereafter the survivors, Millerd and Matthews, share and share 
alike in the profits. That the legal representatives of Bond be credited with 
interest upon their share of the capital, and a reasonable rent for their 
proportion of the real estate, from that period, to be ascertained by the 
master. And as it appears that the repairs and improvements made to the real 
estate were necessary and useful, and were made with the concurrence of 
Matthews, in whose estate these shares are now vested, that the 
representatives of Bond are to be charged in the account with one-third of 
their cost, and that further directions be reserved until the coming in of the 
report.

July 11, 1840, a rehearing was granted upon petition filed for that purpose, 
and an order granted staying all proceedings until the rehearing should be 
had. The following is the opinion of the chancellor upon the rehearing:

The Chancellor.—Most of the questions raised upon the rehearing of this cause 
were considered and disposed of when the case was before the court upon the 
first .hearing. It is not necessary, therefore, to again go through the 
details of this complicated case. Upon a review, I must confess I have had 
more hesitation and doubt upon the question as to whether Matthews ought not 
to be held and considered as having purchased the interest of the deceased 
partner for the benefit of the firm, and an equal division made, both of the 
property and profits, after the repayment of the money paid by him for the 
purchase of this interest.

But as there is no reasonable doubt from the entire case that the purchase 
money was paid by Matthews, no charge or memorandum made on that account in 
the books, and no written contract or memorandum between the parties, it is, 
perhaps, if there be an error, erring on the side of safety to adhere to the 
views then expressed upon this point, although it is with some doubt and 
hesitation. But the point made upon the rehearing, and to which the 
petitioners must be confined, is that the representatives of the heirs of Bond 
are entitled to their election, to take either interest or profits upon that 
share. It was held upon the former occasion, as well from the pleadings and 
proofs as from the whole course of the business of this firm, that it was 
understood and agreed, on the part of Matthews, that this partnership should 
be continued, and that each party was entitled to share alike after the death 
of Bond.

The interest of Bond being vested in Matthews, to give him or his 
representatives this option now, would be contrary to what, from the entire 
case, must be inferred was the contract and understanding of these partners, 
inequitable and unjust.

Of the general rule that the representatives of a deceased partner have this 
election, when the partnership is continued without their assent, there is no 
doubt.

But here this interest is vested in one of the partners who has consented to 
the continuance of this co-partnership; the reason of the rule ceases, and he 
cannot be permitted to share in a manner different from and in violation of 
the manifest understanding of the parties.

Although not embraced in the petition for a rehearing, it is urged that rent, 
instead of interest, should be charged upon the share in the mills and real 
estate originally belonging to Bond. Such was my first impression.

The whole matter of the negotiation after the death of Bond is left very 
obscure; no terms or conditions satisfactorily established in the pleadings or 
proofs. The master, in fixing upon a reasonable rent, must, in fact, resort to 
the profits made by the mills, which formed the principal business of this 
copartnership, and it will, in fact, by changing the decree in this respect, 
be but allowing profits by another name, which the case made will neither call 
for nor justify.

There is much that is obscure in this case, but, upon the whole, I think that 
the equity of the case does not call for or justify the relief sought for by 
the petition for a rehearing.

Motion denied, and the order for a stay of proceedings vacated.

-----------------------
(a.) See Burtch v. Hogge, ante, 31, and cases cited in notes b and c.

Additional Comments:
CASES DETERMINED IN THE COURT OF CHANCERY FOR THE STATE OF MICHIGAN
BY ELON FARNSWORTH, Chancellor 

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