Page:Federal Reporter, 1st Series, Volume 2.djvu/167

 160 ■ FKDEBAli BEPORTBS �Beitton, Assignee, etc., ». Brewsxer and others. (District Court, 8. D. New York. April 28, 1880.) �Feaud— Omission to Commotticatb Pacts.— Whether omission to com- municate a fact will be considered a fraud depends on the circumstances of the particular case and the relations of the parties. �Samb — IrrsupFiciENT Evidence. — Evidence upon the question of frauda- ient representations considered and hdd insufHcient to prove fraud as alleged. �Samb — Right to Keliep ok Other GEorwDS. — Where the fraud alleged in the bill as the sole ground of relief is not proven, a party Is not entitled to relief upon other grounds. �In Equity. �S. A. Bradley and T. M. Nortk, for complainant. �J. K. Murray and J. E. Parsons, for defendants. �Choate, D. j. This is a bill in equity, brought by the as- signee in bankruptcy of Theodore E. Baldwin and Edward W. Burr, who constituted the firm of Theodore E. Baldwin & Co., to recover moneys alleged to have been fraudulently diverted from the assets of that firm to pay the individual debts of Baldwin, and also to recover a carriage fraudulently trans- ferred by Baldwin to the defendant Brewster, and to enjoin the proof of certain notes held by the defendants against the firm or Baldwin individually. The defendants are James B. Brews- ter and a manufacturing corporation, " J. B. Brewster & Co.," of which the defendant Brewster is the president and princi- pal stockholder. �The bill alleges that the firm of Theodore E. Baldwin & Co. was formed on the tenth day of August, 1870, and was adjudged bankrupt November 25, 1871, upon a creditor's petition, filed November 6, 1871; that Burrhad no knowledge or experience in the business, which was that of selling car- nages at No. 786 Broadway, New York; that from January 1, 1860, to January 1, 1869, and again from March 1, 1869, to December 1, 1869, Baldwin and the defendant Brewster had been in partnership, carrying on a like business upon the same premises; that their business in 1869 had been largely unprofitable, their losses amounting to over $46,000; that ����