Page:Federal Reporter, 1st Series, Volume 7.djvu/40

 28 FBDEBAL BBPOBTBB. �tribution or substitution would show that they agreed to make it, and the master bas found that fact. But this und- ing rests upon the supposition that they had agreed to make it, and, with that supposition removed, the finding might net follow. It will not do to infer the fact from the agreement, and the agreement from the fact. �This case in this respect is similar to Bnggs v. Briggs, 46 Vt. 671. There the auditor appears to have supposed that a sister could not recover, for services rendered to her brother, without an express promise to pay, or its equivalent, and thereupon, from the fact,that the services charged for were rendered without request or claim of compensation at the time, to have found that they were performed without expec- tation of payment, and to have disallowed the charges. But the court disregarded this finding as springing from an erro- neous supposition, and, as the services were valuable, and were rendered within the knowledge of, and without objec- tion by, the brother, she was allowed to recover for them. Here it is not at all clear<*that, had the master proceeded upon the basis that the court does, he would have corne to the con- clusion that he did. That he might not is the more obvions from a consideration of the evidence. There is no pretence that the substitution was made at any time except on the occasion when the fuli agreement was filled up and executed. What was done, then, as to this $20,000, rests wholly in the paroi testimony of the orator and J. B. Smith, bis clerk, and that of the defendants Charles Sheldon and John A. Sheldon, except some figures on loose pieces of paper. Neither the testimony of the orator nor of Smith tends to show any pro- posai to change what had been done about the $20,000, nor any negotiation in the direction of distributing it upon the priees of the stone instead of leaving it in a gross sum ; and the testimony of the Sheldons is that no allusion whatever was made to it. The figures have amongthem $20,000, and snow calculations upon the number of stones to be f urnished at rates producing about $20,000. But this can only be de- duced from them by examination and study, and the testi- ��� �