Page:Federal Reporter, 1st Series, Volume 6.djvu/709

 VBTTBSIiBIN V. BARNES. 697 �lein & Co. of Philadelphia prior to January 1, 1866, although by a private agreement with Ms father be was entitled to receive from him a part of his, the father's, share of the profits prior to that time, and on the first of January, 1866, this share, in accrued profits, was transferred to his account and put into the business by him; The proof is not sufficient to establish the alleged agreement, upon the dissolution of Vet- terlein & Co., that the plaintiflf shoald receive ail the collec- tions from the assets of that firm which had been charged oflf to profit and loss until his claim against the firm was paid in fuU. If any agreement on the subject was made it appeared that it was in writing, and it was not produced, nor was its non-production sufi5ciently accounted for to admit paroi evi- dence of its contents. The plaintifif failed to prove that there was any balance of profits due to him and still unpaid from any of said prior firms. It is proved that some of what once constituted part of the assets of some or ail of the prior firms of which the plaintifE was a member were received by the defendant as assignee of the bankrupts, and have ever eince his appointment been held by him as such assignee under the claim that they belonged to the estate of the bank- rupts. The books of the prior firms that came into bis pos- session with the assets and books of the bankrupts apparently showed that there was nothing due to the plaintiff, but that, on the contrary, he was indebted to said firms. �On the twenty-seventh of May, 1873, the plaintiff caused the foHowing letter to be sent to the defendant by his agent : "I am instrueted by Mr. Theodore J. Vetterlein to require of you an accounting and settlement of his interest in the firms of Vetterlein & Co. and Th. H. Vetterlein & Sons, as existing prior to his withdrawal, the assets of which firms came into your hands as assignee in bankruptcy. In default of your so doing, I am direeted to institute legal proceedings to pro- cure the same." On the second day of June, 1873, the plain- tiff sent the defendant a letter by his agent, as follows: "Please oblige be by an acknowledgment of my communica- tion of the twenty-seventh ultimo. If you will state to me in vour answer the substance of what you asked of me person- ��� �