Page:Federal Reporter, 1st Series, Volume 2.djvu/170

 BBITTON ». BEEWSTEH. 163 �complished, to divert the funds of the copartnership from their legitimate use, in carrying on its business and paying its debts, to the payment of the individual debt of Baldwin to Brewster. �AU the alleged illegal and invalid acts complained of are charged to have been done in pursuance of, this fraudaient purpose and design, and the soie ground for relief against them in equity is this alleged fraud. The bill, therefore, very properly avers, and probably necessarily does so, that the diversion of the firm assets complained of was without the consent of Burr. The first question, therefore, to be deter- mined in the cause is whether the complainant has proved the fraud alleged. Upon a careful consideration of the testi- mony and documentary proofs relied on by his counsel as establishing the existence of this fraudulent design and pur- pose on the part of the defendant Brewster, I think there is an entire failure to prove the fraud, either in its whole scope as alleged in the bill, or in any part. �The alleged fraud of Brewster in getting Burr into the part- nership consista of three parts : �First, statements of matters of facts averred to be false; second, concealment of facts, the knowledge of which would, if known, have prevented Burr from going into the partnership ; and, third, expressions of opinion as to the probable profits of the business of the proposed firm, known at the time to Brewster to be grosely extravagant and mieleading. As to the first they were not shown to be false. The proof, on the contrary, is that the business carried on by Brewster & Baldwin had been largely profitable, to the extent of over $100,000 in a single year ; that Baldwin was the best man in the city of New York, as a salesman, for carrying on the business; and that their place of business, Broadway, corner of Tenth street, was the best stand for the business in the city of New York. This is a more correct statement of the representations made by Brewster to Burr than that contained in the bill, and they were true in every particular. �The facts claimed to have been concealed were Baldwin's embarrassed financial condition, and the extent of the lossea ����